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FILED BY FA x
Sohey] Tahsildoost (Bar No. 271294)
Kainoa Aliviado (Bar No. 308382) F I L E e)
THETA LAW FIRM, LLP Superior Court of Callfornia
County of Placer
15901 Hawthorne Blvd., Suite 270
Lawndale, CA 90260 OcT 28 2019
Telephone: (424) 297-3103
Facsimile: (424) 286-2244 Jake Chatters
ecutive Officer & Clerk
Attorneys for defendant Hyundai Motor America 0. Lucatuorto, Deputy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF PLACER
ANNA P. KING, Case No.: SCV0038637
Plaintiff, DEFENDANT HYUNDAI MOTOR
AMERICA’S OPPOSITION TO
vs. PLAINTIFF’S MOTION TO TAX AND/OR
STRIKE DEFENDANT’S COSTS;
HYUNDAI MOTOR AMERICA, a DECLARATION OF SOHEYL
California Corporation, and DOES 1 TAHSILDOOST
through 10, inclusive,
Complaint Filed: October 28, 2016
Defendants. Trial Date: July 1,2019
Hearing Date: November 8, 2019
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Time: 8:30 a.m.
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TO THE COURT, THE PARTIES, AND ALL ATTORNEYS OF RECORD:
Defendant Hyundai Motor America (“HMA”) hereby submits itsOpposition to Plaintiff's
Motion to Tax and/or Strike Defendant’s Costs.
Dated: October 28, 2019
THETA LAW FIRM, LLP
/
Ce
SOHEYL TAHSILDOOST
Attorneys for defendant Hyundai Motor America
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DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX
AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST
MEMORANDUM OF POINTS AND AUTHORITIES
L. INTRODUCTION AND BACKGROUND
On September 17, 2019, HMA served itsMemorandum of Costs seeking $37,861.33
based on the fact that Plaintiff failed to obtain a more favorable judgment than itsCalifornia
Code of Civil Procedure Section 998 offer dated May 26, 2017. (Tahsildoost Decl. 2.) On
October 4, 2019, Plaintiff submitted a motion to tax and/or strike defendant’s costs wherein
Plaintiff seeks to strike and/or tax between $23,362.62 and $34,764.76 in Defendant’s costs.
(Tahsildoost Decl. §3.) In so doing, Plaintiff does not contest that HMA isowed at least between
$3,096.57 and $14,498.71 in costs and that Plaintiff failed to obtain a more favorable judgment
than HMA’s 998 offer dated May 26, 2017. (/d.;Exhibit A to Tahsildoost Decl., HMA’s May
in 26, 2017 998 Offer.)
12 II. ARGUMENT
13 Our Legislature has provided that “a prevailing party is entitled . .. to recover [its]costs”
14 as set forth in Code of Civil Procedure section 1033.5. (§ 1032, subd. (b).) Section 1033.5 itself
sets forth three categories of costs: (1) explicitly “allowed” costs that the prevailing party is
16 entitled to recover as long as they were “reasonably necessary to the conduct of the litigation”
17 and “reasonable in amount” (§ 1033.5, subds. (a) & (c)(1)-(3)); (2) explicitly dis-“allowed” costs
that are not ever recoverable (§ 1033.5, subd. (b));and (3) costs “not mentioned” insection
19 1033.5 that may, “in the court's discretion,” be recovered (§ 1033.5, subd. (c)(4)).
20 If the items appearing in a cost bill appear to be proper charges, the burden ison the party
2] seeking to tax costs to so show that they are not reasonable or necessary. (Nelson v.Anderson
22 (1999) 72 Cal.App.4th 111, 131.) Items on a verified cost memorandum that appear to be proper
23 charges are prima facie evidence of necessity. (Oak Grove School Dist. v. City Title Ins. Co.
24 (1963) 217 Cal.App.2d 678, 699.) In sum, itis not Defendant’s burden to substantiate costs that
25 are properly recoverable on their face; Plaintiff must specifically challenge cost items that appear
26 improper.
27 A. HMA SHOULD BE AWARDED UNDISPUTED COSTS IN THE AMOUNT OF
28
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DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX
AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST
$3,096.57
Plaintiff has not disputed inany way at least $3,096.57 out of the $37,861.33 that HMA
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seeks through itsMemorandum of Costs. Therefore, Plaintiff has admitted and conceded that
HMA is entitled to at least this amount of costs and waived any arguments as to why these costs
should not be awarded. Consequently, these costs must be awarded to HMA outright.
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B. HMA SHOULD BE AWARDED ALL OF THE MOTION AND FILING FEES
SOUGHT IN ITEM 1.
aN
Plaintiff argues that HMA should not be compensated forthe costs associated with the
filing of the stipulation to continue trial on December 4, 2018 and an ex parte motion to continue
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trialstemming from that stipulation on January 15, 2019. Plaintiffs argument isthat these
11 motions were filed solely as a result of HMA’s need. This isfalse. The reason for the
12 stipulation and the ex parte motion was because another trial(Cathy Conrad v. Hyundai Motor
13 America, San Diego County Superior Court Case No. 37-2016-00039251) was moved to a date
14 that interfered with the trialdate in this matter involving the same plaintiff’s counsel and defense
15 counsel. (Tahsildoost Decl. 4.) Through a mutually agreed stipulation, itwas agreed between
16 the parties to request a new trialdate in this matter. (Jd.) This is reflected clearly in the
17 stipulation and the ex parte motion which are attached as an Exhibit hereto. (Exhibit B to
18 Tahsildoost Decl., Stipulation and Ex Parte Motion to Continue Trial.) Therefore, the stipulation
19 and ex parte motion benefited both parties equally and were necessary for both parties, despite
20 Plaintiff's best efforts to now try to cloud the issue. The costs incurred were reasonably
21 necessary to the conduct of the litigation and were certainly reasonable in amount. Therefore,
22 HMA requests that the motion and filing fees sough be granted in full.
23 C. HMA SHOULD BE AWARDED ALL OF THE DEPOSITION COSTS
24 INCURRED PER ITEM 4
25 California Code of Civil Procedure § 1033.5(a)(3)(A) states that the following are
26 allowable costs:
27 “Taking, video recording, and transcribing necessary depositions, including an
28
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DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX |
AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST
original and one copy of those taken by the claimant and one copy of depositions
taken by the party against whom costs are allowed.”
Plaintiff argues that deposition costs should be taxed because HMA does not provide
invoices or receipts for these expenses. Even though this is not a requirement, HMA hereby
attaches as Exhibit C, receipts related to the deposition costs claimed.
Next, Plaintiff takes issue with two deposition costs appearing for Plaintiff Anna King.
However, Plaintiff is well aware that the reason there are two charges for her deposition is
because after Plaintiff was initially deposed on December 28, 2017, Plaintiff testified as to new
information that was provided by her and her Counsel after trialhad already commenced,
10 mainly a video that was taken allegedly showing a defect in her vehicle. (Tahsildoost Decl. 5.)
11 Given that this new information was produced after the commencement of trial,after discovery
12 had closed, and was meant to surprise Defendant attrial, Defense Counsel requested and the
13 Court agreed to order that Ms. King sitfor another deposition that was limited to this video issue.
14 (/d.) That second deposition as to this limited issue took place on July 9, 2019, with Defendant
15 having to find a court reporter and facilities totake the deposition on very short notice. (/d.)
16 Therefore, the two costs listed for Anna King as deposition costs are not duplicative and are in
17 fact a direct result of Plaintiff withholding key evidence until after trialcommenced.
18 Plaintiff also takes issue with HMA seeking transcription charges for Heath Gsell, Ray
19 Hughes, Eric Sim, and Sandy Zielomsky claiming that because Plaintiff noticed and deposed
20 these individuals, HMA should not have incurred costs. All Plaintiff has to do isread the Civil
21 Code § 1033.5(a)(3)(A) to know that their argument fails. The Code states very clearly that
22 deposition costs are recoverable, including “an original and one copy of those taken by the
23 claimant and one copy of depositions taken by the party against whom costs are allowed”
24 (emphasis added). HMA is not seeking any costs for anything extra other than what the Code
25 provides as no rush costs were incurred for the depositions and no extra copies besides the ones
26 allowed by the Code were requested by HMA. Therefore, the costs that HMA claims for these
27 depositions isproper.
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DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX
AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST
Finally, Plaintiff argues against awarding travel costs for the travel associated with the
depositions of Anna King and Heath Gsell, despite such amounts being recoverable costs per the
Code. The cost memorandum here was signed by Defendant’s attorney, Sohey! Tahsildoost,
with allof the obligations imposed by Code of Civil Procedure section 128.7. Thus, the
document itselfis prima facie evidence that gives riseto a presumption of necessity of the costs
noted in the memorandum. (Hadley v.Krepel (1985) 167 Cal.App.3d 677, 682.) Furthermore,
despite not having an obligation to do so, Defense Counsel also attaches herein a Declaration
stating that the $517 in costs for travel associated with Plaintiff Anna King’s deposition was
solely for airfare associated with taking the deposition. (Tahsildoost Decl. §6.) Defendant HMA
isnot seeking rental car expenses from the airport, hotel, meals, or gas or any other travel costs
associated with her deposition. (/d.) With respect to Mr. Gsell, Defense Counsel also attaches
herein a Declaration stating that the $480 in costs associated with travel to his deposition has
already been discounted and split 50-50 with the Madrigal matter. (/d.)
In sum, HMA should be awarded the full depositions costs sought of $5,600.25.
D. HMA SHOULD BE AWARDED SERVICE OF PROCESS COSTS PER ITEM 5
California Code of Civil Procedure § 1033.5(a)(4)(B) allows for costs in the “amount
actually incurred in effecting service, including, but not limited to, a stakeout or other means
employed in locating the person to be served, unless those charges are successfully challenged
by a party to the action.” Plaintiff's motion to tax takes issue with the service of process costs
for Brake Masters, Citrus Heights Smog, River City Brakes, and Lisa Miller. Plaintiff's motion
does not address the service of process costs to Sam’s Club, Midas, or Oilstop, Inc., so those
costs should be allowed as not being challenged.
23 Plaintiff's entire argument seems to be that HMA is not entitled to look into the service
24 history of the vehicle because Plaintiff's main recurring issue with the vehicle was a backup
25 camera. First, HMA only served the facilitieswhere Plaintiff herself said she took the vehicle
26 for service. (Tahsildoost Decl. 7.) HMA needs to obtain such records to properly investigate
27 the case and put on a thorough and proper defense. (/d.) Lemon law cases are largely predicated
28
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DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX
AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST
on service records, whether those are from an authorized dealership, or a third party facility. In
fact, many times, the third party facility records are crucial as they tend to fillin the blanks
regarding a vehicle’s history and customer’s complaints between authorized dealership visits.
(/d.) For example, Plaintiff could have easily complained to those facilitiesabout her backup
camera and those facilitiescan have various service records or statements that the Plaintiff made
that can assist the defense. Additionally, the absence of records from those entities can also be
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useful information to use at trial since that means that the Plaintiff
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did not complain or have that
particular issue when she brought the vehicle in.
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Additionally, Plaintiff had other issues with her vehicle that she complained of in
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addition to the backup camera for which more information could be gathered through the third
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party repair facilities. (Tahsildoost Decl. §8.) There was a complaint about the airconditioning,
there was a complaint about the rear windshield washer being inoperable, and there was a
complaint about her music not working in the vehicle. (/d.) Again, HMA isentitled to
investigate the matter fully and the subpoenas that were served to the various entities went to the
facilitiesthat Plaintiff herself testified that she took the vehicle.
With respect to the service of process as to Lisa Miller. Ms. Miller previously worked for
a Hyundai authorized dealership where Plaintiff took her vehicle. (Tahsildoost Decl. §9.) At the
time of trialshe was no longer employed by a Hyundai dealer and a subpoena had to issue to
compel her testimony. (/d.) She was called and testified at trialto contradict some of the
allegations that Plaintiff made. (/d.) She was criticaland important to the case and there was no
other method of ensuring her appearance.
Therefore itwas reasonably necessary to the conduct of the litigation to issue subpoenas
and obtain records from Sam’s Club, Midas, Oilstop, Inc., Brake Masters, Citrus Heights Smog,
and River City Brakes with respect to Plaintiff's vehicle. It was also reasonably necessary to the
25 conduct of the litigation to subpoena and serve Lisa Miller to testify attrial,and she in fact did
26 testify. The reasonableness of the amount of costs themselves was not challenged by Plaintiff,
27 but HMA hereby attaches as Exhibit D, receipts related to the service of process costs claimed.
28
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DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX
AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST
E. HMA SHOULD BE AWARDED ITS EXPERT WITNESS FEES
California Code of Civil Procedure Section 998 allows a prevailing party to recover fees
paid to experts under the specific circumstances outlined in the statute in addition to the costs
allowable under sections 1032 and 1033.5. (See Murillo v.Fleetwood Enterprises, Inc. (1998) 17
Cal.4th 985, 1000.)
Here, Plaintiff has admitted that Plaintiff failed to obtain a more favorable judgment than
HMA’s 998 Offer of May 26, 2017. (Plaintiff's Opposition, p.3:3-7.) Additionally, Plaintiff
does not challenge the fees paid by HMA to Plaintiff's expert Thomas Lepper in the amount of
$1,575, but does challenge all of the fees incurred by HMA’s expert, Ray Hughes. As support
10 for this ludicrous argument, Plaintiff states that HMA should not have hired an outside expert.
11 As this Court and Plaintiff's counsel know, Song-Beverly litigation often times comes
12 down to the testimony of each side’s experts. Experts are necessary to among other things,
13 conduct a vehicle inspection (as was done here), figuring out what ifany complaints are related
14 (as was done here), and ascertaining whether outside influences or Plaintiff's own actions led to
15 vehicle issues (as was done here). Not only was HMA’s expert invaluable in assessing the
16 strengths and weaknesses of Plaintiff's case, but the expert was vital in getting the case to a
17 result where the jury awarded less than HMA’s prior CCP 998 Offer. (Tahsildoost Decl. 410.)
18 Plaintiff, argues in their motion that Plaintiff should be able to dictate who HMA hires as its
19 expert, so that win or lose at trial— Plaintiff (and their counsel) benefit. Such an argument is
20 improper and baseless. Plaintiff has no right to tellHMA who it should have as itsexpert.
21 Additionally, Plaintiff's Counsel is well aware that if someone in-house were to be
22 selected as an expert, then Plaintiffs Counsel would comment on that person’s bias infront of
23 the jury in order to gain a litigation advantage. Plaintiff's self-serving argument is not well
24 taken. It also bears mentioning that HMA’s expert charges a fraction of what isbeing charged
25 by Plaintiff's expert. (Tahsildoost Decl. ¥11.) Plaintiff's expert charges $195 an hour for
26 investigation, and $350 an hour for sworn testimony. HMA’s expert, Ray Hughes (who has more
27 experience than Plaintiff's expert) charges $100 an hour for investigation and $175 an hour for
28
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DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX
AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST
sworn testimony. (/d.)
In sum, HMA should be awarded the full expert fees sought of $10,138.54 which were
certainly necessary inthe conduct of litigation and extremely reasonable given that they account
for expert fees through trial(and include fees of $1,575.00 incurred deposing Plaintiff's expert).
HMA further submits proof of the contested expert fees to further substantiate the amounts
incurred. (Exhibit E to Tahsildoost Decl., Expert Fee Invoices.)
F. HMA SHOULD BE AWARDED ALL OF THE COSTS INCURRED FOR
MODELS, ENLARGEMENTS, AND PHOTOCOPIES OF EXHIBITS
Plaintiff argues, without any rational support, that HMA should not recover its costs for
exhibit photocopies and enlargement that were used during trial. Plaintiff also makes the false
assertion that in order to recover costs for models, exhibit photocopies, and enlargements, a party
claiming the costs must specify every single exhibit that was used, every single enlargement that
was used, and every single model that was used. This isa standard that isnot found anywhere in
the case law or in California Code of Civil Procedure Section 1033.5. To support this ludicrous
contention, Plaintiff cites two cases (Great Western Bank v. Converse Consultants, Inc. (1997)
58 Cal.App.4th 609, 615; see Ladas v. California State Auto Ass 'n.,19 Cal.App.4th 761, 774)
which did not award costs for exhibits and enlargements because those two cases settled prior
to trial commencing so no exhibits or enlargements had to be used. Those cases do not say
anything about specifying each and every exhibit that was used in front of the trier-of-fact
because such a standard simply does not exist. Furthermore, here we are dealing with a case that
did go to trial,unlike Great Western Bank and Ladas.
As Plaintiff and Plaintiff's Counsel is well aware, thiscase did proceed through trialand
lasted a number of days. During the trial,exhibits including service records, sales documents,
owner handbooks and manuals, expert files,graphs, photos, technical service bulletins, etc., were
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used by both sides. (Tahsildoost Declaration, 412.) Additionally, Defendant had a number of
enlargements made that were used during the trialto explain various issues regarding the vehicle
to the jury. (/d.) This included enlargements of a time versus mileage graph, and graphs
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DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX
AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST
regarding the service visits thatthe vehicle had. (/d.) These are perhaps the most critical parts of
the trial as they provide the jury with a visual explanation of the complaints that the Plaintiff
alleges she had with the vehicle.
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Plaintiff cannot credibly argue that preparing exhibit notebooks and enlargements for the
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jury for trialis unnecessary to the conduct of litigation. In fact, these notebooks and
enlargements are the main items that assists counsel, witnesses, as well as the Court during the
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presentation of a case. Here, the exhibit notebooks and blowups were reasonable and necessary
and aided the jury throughout the trialin eventually reaching a verdict. HMA further submits
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proof of the contested enlargement and exhibit copy fees to further substantiate the amounts
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incurred. (Exhibit F to Tahsildoost Declaration, Exhibit and Enlargement Receipts.)
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1] Therefore, HMA requests the full $1,361.98 be awarded.
G. HMA SHOULD BE AWARDED ALL OF IT’S COURT REPORTER FEES
Section 1033.5 provides for the recovery of “[cJourt reporter fees as established by
statute.” (§ 1033.5, subd. (a)(11); Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836,
858.)
Plaintiff contends that o court reporter fees should be awarded, and offers two
arguments. First, she argues that a prevailing party may obtain court reporter fees only if
“ordered by the court.” In making this argument, plaintiff borrows language from the portion of
section 1033.5 that allows an award for the cost of “/t/ranscripts of court proceedings ordered by
the court.” (§ 1033.5, subd. (a)(9), italics added.) However, “court reporter fees” are “an entirely
different expense” than “transcripts.” (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58.)
Plaintiff's attempt to import subdivision (a)(9)'s limitation into subdivision (a)(11) iswithout
merit.
Second, plaintiff asserts that the court reporter fees are unjustified without evidence and
argues that there isno justification for why on some days the court reporter fees are double the
$697.50 charged for other days. Plaintiff's Counsel should be well aware that some of the trial
days were half days and the Court reporter charged half day rates accordingly. Additionally,
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DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX
AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST
HMA hereby submits proof of the court reporter fees to further substantiate the amounts incurred
and reiterates itsrequest that $8,741.50 in court reporter fees be granted. (Exhibit G to
Tahsildoost Decl., Court Reporter Invoices.) These costs have been undeniably incurred as a
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necessity in litigating this action and the rates are set by the court reporter. HMA respectfully
requests that the court reporter fees be granted in full.
H. HMA SHOULD BE AWARDED ALL OF IT’S OTHER FEES
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Plaintiff seeks to strike all of HMA’s “other” costs incurred on the basis that such costs
sa
were not necessary to the litigation, or are not explicitly not listed as recoverable per Code of
Civil Procedure Section 1033.5. However, HMA liststhe basis for recovery of each of these
10 costs inthe memorandum of costs attachment and these costs are recoverable per the discretion
11 of the Court found in section 1033.5 where itstates that additional costs may, “‘in the court's
12 discretion,” be recovered (§ 1033.5, subd. (c)(4)).
13 With that in mind HMA seeks costs associated with ACE service fees for filing papers
14 linked to a motion for summary adjudication, which was ultimately successful and for filing
15 documentation linked to itsoppositions to Plaintiff's motion in limine that had to be filed with
16 the Court to give the Court adequate time to review prior to rendering decisions at the beginning
17 of trial. (Tahsildoost Declaration, 413.) Proof of these invoices is attached hereto as Exhibit H.
18 HMaA also seeks recovery of telephonic appearance fees of $86 and $94 associated with
19 appearing at a case management conference and at the motion for summary adjudication. Again,
20 these were costs that were necessary and reasonable to save even more costs and resources being
21 incurred by making a personal appearance and requesting even more in costs from Plaintiff.
22 Proof of these invoices is attached hereto as Exhibit I. HMA also seeks recovery of Atkinson-
23 Baker transcripts which were necessary (and ultimately ordered by the Court) due to Plaintiff’s
24 Counsel bringing a motion for a new trialand for the Honorable Michael Jones to recuse himself.
25 (Tahsildoost Declaration, 414.) These motions were ultimately denied, but HMA was entitled to
26 have the transcripts to see if there was any validity to the arguments made by Plaintiffs counsel
27 (there were not). Proof of these invoices isattached hereto as Exhibit J.
28
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DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX
AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST
Finally, HMA seeks costs related to travel expenses of Eric Sim, Hyundai’s Person Most
Knowledgeable, Sandy Zielomski, Hyundai’s Second Person Most Knowledgeable, Zhanna
Bulkina, HMA’s in-house representative, and hotel accommodations in Auburn for Trial of the
matter. All of these expenses were reasonable and necessary to the litigation in thisaction.
HMA needed to get itswitnesses and representatives to Placer County to testify at trialand
wa
needed accommodations during the trial. (Tahsildoost Declaration, 415.) The accommodations
were not used for even a single extra day more than they had to. Proof of these expenses is
attached hereto as Exhibit K and declared to in the declaration below.
Itshould be noted that Plaintiff did not challenge or include in itschart $535.73 incurred
by HMA’s Counsel for attending the vehicle inspection of Plaintiff's vehicle on January 18,
2018. Since that amount was not disputed, itshould be allowed outright.
HMA respectfully requests that costs found in Item 16 — Other, be granted in full.
I, THE COURT SHOULD USE IT’S CONSIDERABLE DISCRETION TO AWARD
ALL COSTS SOUGHT
This Court has considerable discretion to award all costs “not mentioned” in section
1033.5. With that in mind, ifany of the above costs are determined to be not specifically set out
or mentioned in section 1033.5, HMA would hereby request that the costs be awarded using the
Court’s discretion given that all of the costs outlined above have been reasonably incurred by
HMA and have been necessary to HMA in the litigation of this action.
Ill CONCLUSION
Defendant Hyundai Motor America respectfully requests that the Court deny Plaintiff's
Motion to Tax and/or Strike Defendant’s costs in full and award HMA a total of $37,861.33.
Dated: October 28, 2019 THETA LAW FIRM, LLP
, ——
I —)y----s-
.
SOHEYL TAHSILDOOST
Attorneys for defendant Hyundai Motor America
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DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX
AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST
DECLARATION OF SOHEYL TAHSILDOOST
I,Sohey! Tahsildoost, declare as follows:
1. I am a partner in the law firm of Theta Law Firm, LLP, attorneys of record for
Defendant Hyundai Motor America. If called as a witness, I could and would competently
testify under oath to the following facts of which Ihave personal knowledge.
Le On September 17,2019, HMA served its Memorandum of Costs seeking
$37,861.33 based on the fact that Plaintiff failed to obtain a more favorable judgment than its
California Code of Civil Procedure Section 998 offer dated May 26, 2017.
3. On October 4, 2019, Plaintiff submitted a motion to tax and/or strike defendant’s
10 costs wherein Plaintiff seeks to strike and/or tax between $23,362.62 and $34,764.76 in
11 Defendant’s costs. In so doing, Plaintiff does not contest that HMA isowed at least between
12 $3,096.57 and $14,498.71 in costs and that Plaintiff failed to obtain a more favorable judgment
13 than HMA’s 998 offer dated May 26, 2017.
14 4. The reason forfiling the stipulation and the ex parte motion was because another
15 trial(Cathy Conrad v. Hyundai Motor America, San Diego County Superior Court Case No. 37-
16 2016-00039251) was moved to a date that interfered with the trialdate inthis matter involving
17 the same plaintiff's counsel and defense counsel. Through amutually agreed stipulation, itwas
18 agreed between the parties to request a new trialdate in this matter.
19 5. Plaintiff is well aware that the reason there are two charges for her deposition is
20 because after Plaintiff was initially deposed on December 28, 2017, Plaintiff testified as to new
21 information that was provided by her and her Counsel after trial had already commenced, mainly
22 a video that was taken allegedly showing a defect inher vehicle. Given that this new
23 information was produced after the commencement of trial,after discovery had closed, and was
24 meant to surprise Defendant at trial,Defense Counsel requested and the Court agreed to order
25 that Ms. King sitfor another deposition that was limited to this video issue. That second
26 deposition as to this limited issue took place on July 9, 2019, with Defendant having to find a
27 court reporter and facilities to take the deposition on very short notice.
28
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DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX
AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST
6. I hereby state that the $517 in costs for travel associated with Plaintiff Anna
King’s deposition was solely for airfare associated with taking the deposition. Defendant HMA
isnot seeking rental car expenses from the airport, hotel, meals, or gas or any other travel costs
associated with her deposition. With respect to Mr. Gsell, I state that the $480 in costs
associated with travel to his deposition has already been discounted and split 50-50 with the
Madrigal matter.
7. HMA only served the facilitieswhere Plaintiff herself said she took the vehicle
for service. HMA needs to obtain such records to properly investigate the case and put on a
thorough and proper defense. Often, the third party facility records are crucial as they tend to fill
10 in the blanks regarding a vehicle’s history and customer’s complaints between authorized
1 dealership visits.
12 8. Plaintiff had other issues with her vehicle that she complained of in addition to the
13 backup camera for which more information could be gathered through the third party repair
14 facilities. There was a complaint about the air conditioning, there was a complaint about the rear
15 windshield washer being inoperable, and there was a complaint about her music not working in
16 the vehicle.
17 x With respect to the service of process as to Lisa Miller. Ms. Miller previously
18 worked for aHyundai authorized dealership where Plaintiff took her vehicle. At the time of trial
19 she was no longer employed by a Hyundai dealer and a subpoena had to issue to compel her
20 testimony. She was called and testified at trial tocontradict some of the allegations that Plaintiff
21 made.
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\-% FILED BY FA x Sohey] Tahsildoost (Bar No. 271294) Kainoa Aliviado (Bar No. 308382) F I L E e) THETA LAW FIRM, LLP Superior Court of Callfornia County of Placer 15901 Hawthorne Blvd., Suite 270 Lawndale, CA 90260 OcT 28 2019 Telephone: (424) 297-3103 Facsimile: (424) 286-2244 Jake Chatters ecutive Officer & Clerk Attorneys for defendant Hyundai Motor America 0. Lucatuorto, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF PLACER ANNA P. KING, Case No.: SCV0038637 Plaintiff, DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO vs. PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS; HYUNDAI MOTOR AMERICA, a DECLARATION OF SOHEYL California Corporation, and DOES 1 TAHSILDOOST through 10, inclusive, Complaint Filed: October 28, 2016 Defendants. Trial Date: July 1,2019 Hearing Date: November 8, 2019 i Time: 8:30 a.m. i i TO THE COURT, THE PARTIES, AND ALL ATTORNEYS OF RECORD: Defendant Hyundai Motor America (“HMA”) hereby submits itsOpposition to Plaintiff's Motion to Tax and/or Strike Defendant’s Costs. Dated: October 28, 2019 THETA LAW FIRM, LLP / Ce SOHEYL TAHSILDOOST Attorneys for defendant Hyundai Motor America MAKING, ANNA\PLEADINGS\MTOSCOPP01.DOCX 1 DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST MEMORANDUM OF POINTS AND AUTHORITIES L. INTRODUCTION AND BACKGROUND On September 17, 2019, HMA served itsMemorandum of Costs seeking $37,861.33 based on the fact that Plaintiff failed to obtain a more favorable judgment than itsCalifornia Code of Civil Procedure Section 998 offer dated May 26, 2017. (Tahsildoost Decl. 2.) On October 4, 2019, Plaintiff submitted a motion to tax and/or strike defendant’s costs wherein Plaintiff seeks to strike and/or tax between $23,362.62 and $34,764.76 in Defendant’s costs. (Tahsildoost Decl. §3.) In so doing, Plaintiff does not contest that HMA isowed at least between $3,096.57 and $14,498.71 in costs and that Plaintiff failed to obtain a more favorable judgment than HMA’s 998 offer dated May 26, 2017. (/d.;Exhibit A to Tahsildoost Decl., HMA’s May in 26, 2017 998 Offer.) 12 II. ARGUMENT 13 Our Legislature has provided that “a prevailing party is entitled . .. to recover [its]costs” 14 as set forth in Code of Civil Procedure section 1033.5. (§ 1032, subd. (b).) Section 1033.5 itself sets forth three categories of costs: (1) explicitly “allowed” costs that the prevailing party is 16 entitled to recover as long as they were “reasonably necessary to the conduct of the litigation” 17 and “reasonable in amount” (§ 1033.5, subds. (a) & (c)(1)-(3)); (2) explicitly dis-“allowed” costs that are not ever recoverable (§ 1033.5, subd. (b));and (3) costs “not mentioned” insection 19 1033.5 that may, “in the court's discretion,” be recovered (§ 1033.5, subd. (c)(4)). 20 If the items appearing in a cost bill appear to be proper charges, the burden ison the party 2] seeking to tax costs to so show that they are not reasonable or necessary. (Nelson v.Anderson 22 (1999) 72 Cal.App.4th 111, 131.) Items on a verified cost memorandum that appear to be proper 23 charges are prima facie evidence of necessity. (Oak Grove School Dist. v. City Title Ins. Co. 24 (1963) 217 Cal.App.2d 678, 699.) In sum, itis not Defendant’s burden to substantiate costs that 25 are properly recoverable on their face; Plaintiff must specifically challenge cost items that appear 26 improper. 27 A. HMA SHOULD BE AWARDED UNDISPUTED COSTS IN THE AMOUNT OF 28 M:\KING, ANNA\PLEADINGS\MTOSCOPP01.DOCX 2 DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST $3,096.57 Plaintiff has not disputed inany way at least $3,096.57 out of the $37,861.33 that HMA BOG seeks through itsMemorandum of Costs. Therefore, Plaintiff has admitted and conceded that HMA is entitled to at least this amount of costs and waived any arguments as to why these costs should not be awarded. Consequently, these costs must be awarded to HMA outright. CUNO B. HMA SHOULD BE AWARDED ALL OF THE MOTION AND FILING FEES SOUGHT IN ITEM 1. aN Plaintiff argues that HMA should not be compensated forthe costs associated with the filing of the stipulation to continue trial on December 4, 2018 and an ex parte motion to continue ‘© trialstemming from that stipulation on January 15, 2019. Plaintiffs argument isthat these 11 motions were filed solely as a result of HMA’s need. This isfalse. The reason for the 12 stipulation and the ex parte motion was because another trial(Cathy Conrad v. Hyundai Motor 13 America, San Diego County Superior Court Case No. 37-2016-00039251) was moved to a date 14 that interfered with the trialdate in this matter involving the same plaintiff’s counsel and defense 15 counsel. (Tahsildoost Decl. 4.) Through a mutually agreed stipulation, itwas agreed between 16 the parties to request a new trialdate in this matter. (Jd.) This is reflected clearly in the 17 stipulation and the ex parte motion which are attached as an Exhibit hereto. (Exhibit B to 18 Tahsildoost Decl., Stipulation and Ex Parte Motion to Continue Trial.) Therefore, the stipulation 19 and ex parte motion benefited both parties equally and were necessary for both parties, despite 20 Plaintiff's best efforts to now try to cloud the issue. The costs incurred were reasonably 21 necessary to the conduct of the litigation and were certainly reasonable in amount. Therefore, 22 HMA requests that the motion and filing fees sough be granted in full. 23 C. HMA SHOULD BE AWARDED ALL OF THE DEPOSITION COSTS 24 INCURRED PER ITEM 4 25 California Code of Civil Procedure § 1033.5(a)(3)(A) states that the following are 26 allowable costs: 27 “Taking, video recording, and transcribing necessary depositions, including an 28 M:\KING, ANNA\PLEADINGS\MTOSCOPP01.DOCX 3 DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX | AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed.” Plaintiff argues that deposition costs should be taxed because HMA does not provide invoices or receipts for these expenses. Even though this is not a requirement, HMA hereby attaches as Exhibit C, receipts related to the deposition costs claimed. Next, Plaintiff takes issue with two deposition costs appearing for Plaintiff Anna King. However, Plaintiff is well aware that the reason there are two charges for her deposition is because after Plaintiff was initially deposed on December 28, 2017, Plaintiff testified as to new information that was provided by her and her Counsel after trialhad already commenced, 10 mainly a video that was taken allegedly showing a defect in her vehicle. (Tahsildoost Decl. 5.) 11 Given that this new information was produced after the commencement of trial,after discovery 12 had closed, and was meant to surprise Defendant attrial, Defense Counsel requested and the 13 Court agreed to order that Ms. King sitfor another deposition that was limited to this video issue. 14 (/d.) That second deposition as to this limited issue took place on July 9, 2019, with Defendant 15 having to find a court reporter and facilities totake the deposition on very short notice. (/d.) 16 Therefore, the two costs listed for Anna King as deposition costs are not duplicative and are in 17 fact a direct result of Plaintiff withholding key evidence until after trialcommenced. 18 Plaintiff also takes issue with HMA seeking transcription charges for Heath Gsell, Ray 19 Hughes, Eric Sim, and Sandy Zielomsky claiming that because Plaintiff noticed and deposed 20 these individuals, HMA should not have incurred costs. All Plaintiff has to do isread the Civil 21 Code § 1033.5(a)(3)(A) to know that their argument fails. The Code states very clearly that 22 deposition costs are recoverable, including “an original and one copy of those taken by the 23 claimant and one copy of depositions taken by the party against whom costs are allowed” 24 (emphasis added). HMA is not seeking any costs for anything extra other than what the Code 25 provides as no rush costs were incurred for the depositions and no extra copies besides the ones 26 allowed by the Code were requested by HMA. Therefore, the costs that HMA claims for these 27 depositions isproper. 28 M‘\KING, ANNA\PLEADINGS\MTOSCOPP01._DOCX 4 DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST Finally, Plaintiff argues against awarding travel costs for the travel associated with the depositions of Anna King and Heath Gsell, despite such amounts being recoverable costs per the Code. The cost memorandum here was signed by Defendant’s attorney, Sohey! Tahsildoost, with allof the obligations imposed by Code of Civil Procedure section 128.7. Thus, the document itselfis prima facie evidence that gives riseto a presumption of necessity of the costs noted in the memorandum. (Hadley v.Krepel (1985) 167 Cal.App.3d 677, 682.) Furthermore, despite not having an obligation to do so, Defense Counsel also attaches herein a Declaration stating that the $517 in costs for travel associated with Plaintiff Anna King’s deposition was solely for airfare associated with taking the deposition. (Tahsildoost Decl. §6.) Defendant HMA isnot seeking rental car expenses from the airport, hotel, meals, or gas or any other travel costs associated with her deposition. (/d.) With respect to Mr. Gsell, Defense Counsel also attaches herein a Declaration stating that the $480 in costs associated with travel to his deposition has already been discounted and split 50-50 with the Madrigal matter. (/d.) In sum, HMA should be awarded the full depositions costs sought of $5,600.25. D. HMA SHOULD BE AWARDED SERVICE OF PROCESS COSTS PER ITEM 5 California Code of Civil Procedure § 1033.5(a)(4)(B) allows for costs in the “amount actually incurred in effecting service, including, but not limited to, a stakeout or other means employed in locating the person to be served, unless those charges are successfully challenged by a party to the action.” Plaintiff's motion to tax takes issue with the service of process costs for Brake Masters, Citrus Heights Smog, River City Brakes, and Lisa Miller. Plaintiff's motion does not address the service of process costs to Sam’s Club, Midas, or Oilstop, Inc., so those costs should be allowed as not being challenged. 23 Plaintiff's entire argument seems to be that HMA is not entitled to look into the service 24 history of the vehicle because Plaintiff's main recurring issue with the vehicle was a backup 25 camera. First, HMA only served the facilitieswhere Plaintiff herself said she took the vehicle 26 for service. (Tahsildoost Decl. 7.) HMA needs to obtain such records to properly investigate 27 the case and put on a thorough and proper defense. (/d.) Lemon law cases are largely predicated 28 M:\KING, ANNA\PLEADINGS\MTOSCOPP0i.DOCX 5 DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST on service records, whether those are from an authorized dealership, or a third party facility. In fact, many times, the third party facility records are crucial as they tend to fillin the blanks regarding a vehicle’s history and customer’s complaints between authorized dealership visits. (/d.) For example, Plaintiff could have easily complained to those facilitiesabout her backup camera and those facilitiescan have various service records or statements that the Plaintiff made that can assist the defense. Additionally, the absence of records from those entities can also be DH useful information to use at trial since that means that the Plaintiff ST did not complain or have that particular issue when she brought the vehicle in. CO Additionally, Plaintiff had other issues with her vehicle that she complained of in co addition to the backup camera for which more information could be gathered through the third oO party repair facilities. (Tahsildoost Decl. §8.) There was a complaint about the airconditioning, there was a complaint about the rear windshield washer being inoperable, and there was a complaint about her music not working in the vehicle. (/d.) Again, HMA isentitled to investigate the matter fully and the subpoenas that were served to the various entities went to the facilitiesthat Plaintiff herself testified that she took the vehicle. With respect to the service of process as to Lisa Miller. Ms. Miller previously worked for a Hyundai authorized dealership where Plaintiff took her vehicle. (Tahsildoost Decl. §9.) At the time of trialshe was no longer employed by a Hyundai dealer and a subpoena had to issue to compel her testimony. (/d.) She was called and testified at trialto contradict some of the allegations that Plaintiff made. (/d.) She was criticaland important to the case and there was no other method of ensuring her appearance. Therefore itwas reasonably necessary to the conduct of the litigation to issue subpoenas and obtain records from Sam’s Club, Midas, Oilstop, Inc., Brake Masters, Citrus Heights Smog, and River City Brakes with respect to Plaintiff's vehicle. It was also reasonably necessary to the 25 conduct of the litigation to subpoena and serve Lisa Miller to testify attrial,and she in fact did 26 testify. The reasonableness of the amount of costs themselves was not challenged by Plaintiff, 27 but HMA hereby attaches as Exhibit D, receipts related to the service of process costs claimed. 28 M\KING, ANNA\PLEADINGS\MTOSCOPP01.DOCX 6 DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST E. HMA SHOULD BE AWARDED ITS EXPERT WITNESS FEES California Code of Civil Procedure Section 998 allows a prevailing party to recover fees paid to experts under the specific circumstances outlined in the statute in addition to the costs allowable under sections 1032 and 1033.5. (See Murillo v.Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 1000.) Here, Plaintiff has admitted that Plaintiff failed to obtain a more favorable judgment than HMA’s 998 Offer of May 26, 2017. (Plaintiff's Opposition, p.3:3-7.) Additionally, Plaintiff does not challenge the fees paid by HMA to Plaintiff's expert Thomas Lepper in the amount of $1,575, but does challenge all of the fees incurred by HMA’s expert, Ray Hughes. As support 10 for this ludicrous argument, Plaintiff states that HMA should not have hired an outside expert. 11 As this Court and Plaintiff's counsel know, Song-Beverly litigation often times comes 12 down to the testimony of each side’s experts. Experts are necessary to among other things, 13 conduct a vehicle inspection (as was done here), figuring out what ifany complaints are related 14 (as was done here), and ascertaining whether outside influences or Plaintiff's own actions led to 15 vehicle issues (as was done here). Not only was HMA’s expert invaluable in assessing the 16 strengths and weaknesses of Plaintiff's case, but the expert was vital in getting the case to a 17 result where the jury awarded less than HMA’s prior CCP 998 Offer. (Tahsildoost Decl. 410.) 18 Plaintiff, argues in their motion that Plaintiff should be able to dictate who HMA hires as its 19 expert, so that win or lose at trial— Plaintiff (and their counsel) benefit. Such an argument is 20 improper and baseless. Plaintiff has no right to tellHMA who it should have as itsexpert. 21 Additionally, Plaintiff's Counsel is well aware that if someone in-house were to be 22 selected as an expert, then Plaintiffs Counsel would comment on that person’s bias infront of 23 the jury in order to gain a litigation advantage. Plaintiff's self-serving argument is not well 24 taken. It also bears mentioning that HMA’s expert charges a fraction of what isbeing charged 25 by Plaintiff's expert. (Tahsildoost Decl. ¥11.) Plaintiff's expert charges $195 an hour for 26 investigation, and $350 an hour for sworn testimony. HMA’s expert, Ray Hughes (who has more 27 experience than Plaintiff's expert) charges $100 an hour for investigation and $175 an hour for 28 MAKING, ANNA\PLEADINGS\MTOSCOPP01.DOCX 7 DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST sworn testimony. (/d.) In sum, HMA should be awarded the full expert fees sought of $10,138.54 which were certainly necessary inthe conduct of litigation and extremely reasonable given that they account for expert fees through trial(and include fees of $1,575.00 incurred deposing Plaintiff's expert). HMA further submits proof of the contested expert fees to further substantiate the amounts incurred. (Exhibit E to Tahsildoost Decl., Expert Fee Invoices.) F. HMA SHOULD BE AWARDED ALL OF THE COSTS INCURRED FOR MODELS, ENLARGEMENTS, AND PHOTOCOPIES OF EXHIBITS Plaintiff argues, without any rational support, that HMA should not recover its costs for exhibit photocopies and enlargement that were used during trial. Plaintiff also makes the false assertion that in order to recover costs for models, exhibit photocopies, and enlargements, a party claiming the costs must specify every single exhibit that was used, every single enlargement that was used, and every single model that was used. This isa standard that isnot found anywhere in the case law or in California Code of Civil Procedure Section 1033.5. To support this ludicrous contention, Plaintiff cites two cases (Great Western Bank v. Converse Consultants, Inc. (1997) 58 Cal.App.4th 609, 615; see Ladas v. California State Auto Ass 'n.,19 Cal.App.4th 761, 774) which did not award costs for exhibits and enlargements because those two cases settled prior to trial commencing so no exhibits or enlargements had to be used. Those cases do not say anything about specifying each and every exhibit that was used in front of the trier-of-fact because such a standard simply does not exist. Furthermore, here we are dealing with a case that did go to trial,unlike Great Western Bank and Ladas. As Plaintiff and Plaintiff's Counsel is well aware, thiscase did proceed through trialand lasted a number of days. During the trial,exhibits including service records, sales documents, owner handbooks and manuals, expert files,graphs, photos, technical service bulletins, etc., were tO & used by both sides. (Tahsildoost Declaration, 412.) Additionally, Defendant had a number of enlargements made that were used during the trialto explain various issues regarding the vehicle to the jury. (/d.) This included enlargements of a time versus mileage graph, and graphs M:\KING, ANNA\PLEADINGS\MTOSCOPP0!.DOCX 8 DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST regarding the service visits thatthe vehicle had. (/d.) These are perhaps the most critical parts of the trial as they provide the jury with a visual explanation of the complaints that the Plaintiff alleges she had with the vehicle. Ww Plaintiff cannot credibly argue that preparing exhibit notebooks and enlargements for the > jury for trialis unnecessary to the conduct of litigation. In fact, these notebooks and enlargements are the main items that assists counsel, witnesses, as well as the Court during the ND presentation of a case. Here, the exhibit notebooks and blowups were reasonable and necessary and aided the jury throughout the trialin eventually reaching a verdict. HMA further submits f& proof of the contested enlargement and exhibit copy fees to further substantiate the amounts So incurred. (Exhibit F to Tahsildoost Declaration, Exhibit and Enlargement Receipts.) i) 1] Therefore, HMA requests the full $1,361.98 be awarded. G. HMA SHOULD BE AWARDED ALL OF IT’S COURT REPORTER FEES Section 1033.5 provides for the recovery of “[cJourt reporter fees as established by statute.” (§ 1033.5, subd. (a)(11); Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 858.) Plaintiff contends that o court reporter fees should be awarded, and offers two arguments. First, she argues that a prevailing party may obtain court reporter fees only if “ordered by the court.” In making this argument, plaintiff borrows language from the portion of section 1033.5 that allows an award for the cost of “/t/ranscripts of court proceedings ordered by the court.” (§ 1033.5, subd. (a)(9), italics added.) However, “court reporter fees” are “an entirely different expense” than “transcripts.” (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58.) Plaintiff's attempt to import subdivision (a)(9)'s limitation into subdivision (a)(11) iswithout merit. Second, plaintiff asserts that the court reporter fees are unjustified without evidence and argues that there isno justification for why on some days the court reporter fees are double the $697.50 charged for other days. Plaintiff's Counsel should be well aware that some of the trial days were half days and the Court reporter charged half day rates accordingly. Additionally, MAKING, ANNA\PLEADINGS\MTOSCOPP01.DOCX 9 DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST HMA hereby submits proof of the court reporter fees to further substantiate the amounts incurred and reiterates itsrequest that $8,741.50 in court reporter fees be granted. (Exhibit G to Tahsildoost Decl., Court Reporter Invoices.) These costs have been undeniably incurred as a Ww necessity in litigating this action and the rates are set by the court reporter. HMA respectfully requests that the court reporter fees be granted in full. H. HMA SHOULD BE AWARDED ALL OF IT’S OTHER FEES Sw Plaintiff seeks to strike all of HMA’s “other” costs incurred on the basis that such costs sa were not necessary to the litigation, or are not explicitly not listed as recoverable per Code of Civil Procedure Section 1033.5. However, HMA liststhe basis for recovery of each of these 10 costs inthe memorandum of costs attachment and these costs are recoverable per the discretion 11 of the Court found in section 1033.5 where itstates that additional costs may, “‘in the court's 12 discretion,” be recovered (§ 1033.5, subd. (c)(4)). 13 With that in mind HMA seeks costs associated with ACE service fees for filing papers 14 linked to a motion for summary adjudication, which was ultimately successful and for filing 15 documentation linked to itsoppositions to Plaintiff's motion in limine that had to be filed with 16 the Court to give the Court adequate time to review prior to rendering decisions at the beginning 17 of trial. (Tahsildoost Declaration, 413.) Proof of these invoices is attached hereto as Exhibit H. 18 HMaA also seeks recovery of telephonic appearance fees of $86 and $94 associated with 19 appearing at a case management conference and at the motion for summary adjudication. Again, 20 these were costs that were necessary and reasonable to save even more costs and resources being 21 incurred by making a personal appearance and requesting even more in costs from Plaintiff. 22 Proof of these invoices is attached hereto as Exhibit I. HMA also seeks recovery of Atkinson- 23 Baker transcripts which were necessary (and ultimately ordered by the Court) due to Plaintiff’s 24 Counsel bringing a motion for a new trialand for the Honorable Michael Jones to recuse himself. 25 (Tahsildoost Declaration, 414.) These motions were ultimately denied, but HMA was entitled to 26 have the transcripts to see if there was any validity to the arguments made by Plaintiffs counsel 27 (there were not). Proof of these invoices isattached hereto as Exhibit J. 28 MAKING, ANNA\PLEADINGS\MTOSCOPP01.DOCX 1 0 DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST Finally, HMA seeks costs related to travel expenses of Eric Sim, Hyundai’s Person Most Knowledgeable, Sandy Zielomski, Hyundai’s Second Person Most Knowledgeable, Zhanna Bulkina, HMA’s in-house representative, and hotel accommodations in Auburn for Trial of the matter. All of these expenses were reasonable and necessary to the litigation in thisaction. HMA needed to get itswitnesses and representatives to Placer County to testify at trialand wa needed accommodations during the trial. (Tahsildoost Declaration, 415.) The accommodations were not used for even a single extra day more than they had to. Proof of these expenses is attached hereto as Exhibit K and declared to in the declaration below. Itshould be noted that Plaintiff did not challenge or include in itschart $535.73 incurred by HMA’s Counsel for attending the vehicle inspection of Plaintiff's vehicle on January 18, 2018. Since that amount was not disputed, itshould be allowed outright. HMA respectfully requests that costs found in Item 16 — Other, be granted in full. I, THE COURT SHOULD USE IT’S CONSIDERABLE DISCRETION TO AWARD ALL COSTS SOUGHT This Court has considerable discretion to award all costs “not mentioned” in section 1033.5. With that in mind, ifany of the above costs are determined to be not specifically set out or mentioned in section 1033.5, HMA would hereby request that the costs be awarded using the Court’s discretion given that all of the costs outlined above have been reasonably incurred by HMA and have been necessary to HMA in the litigation of this action. Ill CONCLUSION Defendant Hyundai Motor America respectfully requests that the Court deny Plaintiff's Motion to Tax and/or Strike Defendant’s costs in full and award HMA a total of $37,861.33. Dated: October 28, 2019 THETA LAW FIRM, LLP , —— I —)y----s- . SOHEYL TAHSILDOOST Attorneys for defendant Hyundai Motor America M:\KING, ANNA\PLEADINGS\MTOSCOPP01.DOCX 11 DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST DECLARATION OF SOHEYL TAHSILDOOST I,Sohey! Tahsildoost, declare as follows: 1. I am a partner in the law firm of Theta Law Firm, LLP, attorneys of record for Defendant Hyundai Motor America. If called as a witness, I could and would competently testify under oath to the following facts of which Ihave personal knowledge. Le On September 17,2019, HMA served its Memorandum of Costs seeking $37,861.33 based on the fact that Plaintiff failed to obtain a more favorable judgment than its California Code of Civil Procedure Section 998 offer dated May 26, 2017. 3. On October 4, 2019, Plaintiff submitted a motion to tax and/or strike defendant’s 10 costs wherein Plaintiff seeks to strike and/or tax between $23,362.62 and $34,764.76 in 11 Defendant’s costs. In so doing, Plaintiff does not contest that HMA isowed at least between 12 $3,096.57 and $14,498.71 in costs and that Plaintiff failed to obtain a more favorable judgment 13 than HMA’s 998 offer dated May 26, 2017. 14 4. The reason forfiling the stipulation and the ex parte motion was because another 15 trial(Cathy Conrad v. Hyundai Motor America, San Diego County Superior Court Case No. 37- 16 2016-00039251) was moved to a date that interfered with the trialdate inthis matter involving 17 the same plaintiff's counsel and defense counsel. Through amutually agreed stipulation, itwas 18 agreed between the parties to request a new trialdate in this matter. 19 5. Plaintiff is well aware that the reason there are two charges for her deposition is 20 because after Plaintiff was initially deposed on December 28, 2017, Plaintiff testified as to new 21 information that was provided by her and her Counsel after trial had already commenced, mainly 22 a video that was taken allegedly showing a defect inher vehicle. Given that this new 23 information was produced after the commencement of trial,after discovery had closed, and was 24 meant to surprise Defendant at trial,Defense Counsel requested and the Court agreed to order 25 that Ms. King sitfor another deposition that was limited to this video issue. That second 26 deposition as to this limited issue took place on July 9, 2019, with Defendant having to find a 27 court reporter and facilities to take the deposition on very short notice. 28 MAKING, ANNA\PLEADINGS\MTOSCOPP01.DOCX 1 a DEFENDANT HYUNDAI MOTOR AMERICA’S OPPOSITION TO PLAINTIFF’S MOTION TO TAX AND/OR STRIKE DEFENDANT’S COSTS; DECLARATION OF SOHEYL TAHSILDOOST 6. I hereby state that the $517 in costs for travel associated with Plaintiff Anna King’s deposition was solely for airfare associated with taking the deposition. Defendant HMA isnot seeking rental car expenses from the airport, hotel, meals, or gas or any other travel costs associated with her deposition. With respect to Mr. Gsell, I state that the $480 in costs associated with travel to his deposition has already been discounted and split 50-50 with the Madrigal matter. 7. HMA only served the facilitieswhere Plaintiff herself said she took the vehicle for service. HMA needs to obtain such records to properly investigate the case and put on a thorough and proper defense. Often, the third party facility records are crucial as they tend to fill 10 in the blanks regarding a vehicle’s history and customer’s complaints between authorized 1 dealership visits. 12 8. Plaintiff had other issues with her vehicle that she complained of in addition to the 13 backup camera for which more information could be gathered through the third party repair 14 facilities. There was a complaint about the air conditioning, there was a complaint about the rear 15 windshield washer being inoperable, and there was a complaint about her music not working in 16 the vehicle. 17 x With respect to the service of process as to Lisa Miller. Ms. Miller previously 18 worked for aHyundai authorized dealership where Plaintiff took her vehicle. At the time of trial 19 she was no longer employed by a Hyundai dealer and a subpoena had to issue to compel her 20 testimony. She was called and testified at trial tocontradict some of the allegations that Plaintiff 21 made. 2