On 11/28/2012 BEHROUZ SHADSIRAT filed a Contract - Business Governance lawsuit against NATIONAL CASH, INC . This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judges overseeing this case are JAMES A. STEELE, RUSSELL STEVEN KUSSMAN, VIRGINIA KEENY, SHIRLEY K. WATKINS, MICHAEL J. CONVEY, THERESA M. TRABER and BERNIE C. LAFORTEZA. The case status is Not Classified By Court.
Not Classified By Court
Los Angeles County Superior Courts
Van Nuys Courthouse East
Los Angeles, California
JAMES A. STEELE
RUSSELL STEVEN KUSSMAN
SHIRLEY K. WATKINS
MICHAEL J. CONVEY
THERESA M. TRABER
BERNIE C. LAFORTEZA
SHADSIRAT BEHROUZ DIRECTLY & DERIVATELY
NATIONAL CASH INC.
BANK OF AMERICA N.A.
ELITE BANKCARD SOLUTIONS LLC
NATIONAL CASH INC. A NEVADA CORP.
PAYMENT ALLIANCE INTERNATIONAL INC.
NATIONAL CASH INC.
DAVAN INVESTMENT CORPORATION
STEELE JAMES A.
DONELL STEPHEN J.
STEELE JUDGE JAMES
PASTERNAK DAVID JOEL
DONELL STEPHEN J.
PASTERNAK DAVID JOEL
BERDJIS PEIMAN M.D.
GENTINO ROBERT E.
LAVAEE MICHAEL Y. ESQ.
AVER RAYMOND HILLEL
ABRAMS MICHAEL SCOTT
MCDOW ASHLEY MARIE
3/29/2019: Brief - BRIEF PLAINTIFF'S BRIEF RE: PENDING DISCOVERY MOTIONS
4/2/2019: Ex Parte Application - EX PARTE APPLICATION MOTION FOR RECONSIDERATION RE ENTRY OF ORDER RE APPLICABILITY OF CAL. CODE. CIV. PROC. SECTION 583.310 ET. SEQ. AS TO DEFENDANT MOHAMMAD KHAJEHMIRAKI
7/3/2019: Motion for Sanctions
7/19/2019: Notice - NOTICE OF RULING 7-18-19
8/1/2019: Exhibit List
8/30/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SANCTIONS; HEARING ON MOTION FOR AN ORD...)
10/3/2019: Notice - NOTICE NOTICE OF RESCHEDULED HEARING ON RECEIVER'S MOTION TO COMPEL
10/18/2019: Brief - BRIEF RE: EFFECT OF 1ST BANKRUPTCY STAY ON COURTS JURISDICTION
2/25/2020: Order - ORDER EXTENDING TIME TO FILE OPPOSITIONS TO 3 MOTIONS
9/16/2020: Statement of Decision - STATEMENT OF DECISION -FINAL
1/17/2018: Legacy Document - LEGACY DOCUMENT TYPE: Opposition
1/18/2018: Minute Order - Minute order entered: 2018-01-18 00:00:00
1/19/2018: Legacy Document - LEGACY DOCUMENT TYPE: Response
1/29/2018: Motion to Be Relieved as Counsel
7/23/2018: Legacy Document - LEGACY DOCUMENT TYPE: Notice-Bankruptcy
9/6/2018: Order Granting Attorney's Motion to Be Relieved as Counsel-Civil -
3/5/2019: Declaration in Support of Ex Parte Application
3/28/2019: Reply - REPLY SUPPORTING MOTION FOR JUDGMENT ON THE PLEADINGS
Hearing02/24/2021 at 10:00 AM in Department W at 6230 Sylmar Ave., Van Nuys, CA 91401; Hearing on Motion to Tax CostsRead MoreRead Less
Hearing02/24/2021 at 10:00 AM in Department W at 6230 Sylmar Ave., Van Nuys, CA 91401; Hearing on Motion - Other 473 MotionRead MoreRead Less
Hearing02/24/2021 at 10:00 AM in Department W at 6230 Sylmar Ave., Van Nuys, CA 91401; Hearing on Motion for Attorney FeesRead MoreRead Less
DocketDeclaration (Declaration Of Counsel ISO Defendant Shabnam Mesachi's Opposition To Plaintiff's Motion For Relief And Motion To Tax Costs); Filed by Joseph Zargar (Cross-Complainant)Read MoreRead Less
DocketOpposition (Defendant Shabnam Mesachi's Opposition To Plaintiff's Motion For Relief And Motion To Tax Costs); Filed by Joseph Zargar (Cross-Complainant)Read MoreRead Less
DocketOpposition (to motion for indemnity); Filed by Behrouz Shadsirat (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department W, Virginia Keeny, Presiding; Hearing on Motion for Attorney Fees - Not Held - Rescheduled by PartyRead MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Mohammad Khajehmiraki (Defendant)Read MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Mohammad Khajehmiraki (Defendant)Read MoreRead Less
DocketMotion for Attorney Fees; Filed by Mohammad Khajehmiraki (Defendant)Read MoreRead Less
DocketMinute order entered: 2012-11-29 00:00:00; Filed by ClerkRead MoreRead Less
DocketBrief; Filed by Behrouz Shadsirat (Plaintiff)Read MoreRead Less
Docketat 09:30 AM in Department C; (Application-Ex Parte; Continued) -Read MoreRead Less
DocketNotice of Stay of Proceedings (Bankruptcy); Filed by Shabnam Messachi (Defendant); Joseph Zargar (Defendant)Read MoreRead Less
DocketSummons-Issued; Filed by Behrouz Shadsirat (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by Behrouz Shadsirat (Plaintiff)Read MoreRead Less
DocketMinute order entered: 2012-11-28 00:00:00; Filed by ClerkRead MoreRead Less
DocketRequest for Judicial Notice; Filed by Behrouz Shadsirat (Plaintiff)Read MoreRead Less
DocketEx-Parte Application; Filed by Behrouz Shadsirat (Plaintiff)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
Case Number: LC099055 Hearing Date: January 07, 2021 Dept: W
BEHROUZ SHADSIRAT V. NATIONAL CASH, INC., ET AL.
PLAINTIFF/CROSS-DEFENDANT’S MOTION TO TAX COSTS
Date of Hearing: January 7, 2021 Trial Date: None set.
Department: W Case No.: LC099055
Moving Party: Plaintiff/Cross-Defendant Behrouz Shadisrat
Responding Party: Defendant/Cross-Complainant Mohammad Khajehmiraki
Plaintiff Behrouz Shadsirat, directly and derivatively on behalf of National Cash, Inc. (“NCI”), sued Defendants NCI, Joseph Zargar, Mohammad Khajehmiraki, Shabnam Messachi, Payment Alliance International, Inc., Elite Bankcard Solutions, LLC, Bank of America, N.A. The operative complaint alleges causes of action for: (1) Involuntary dissolution; (2) Breach of fiduciary duty (derivatively against Defendant Zargar); (3) Breach of fiduciary duty (personally against Defendant Zargar); (4) Breach of fiduciary duty (derivatively against Defendant Khajehmiraki); (5) Interference with economic relationship (derivatively against all defendants) (6) Fraud; (7) Conversion; (8) Violation of Corp. Code § 1602; (9) Accounting; and (10) Declaratory relief.
The court issued a preliminary injunction allowing Zargar to maintain control of National Cash but designed it so that Zargar could not deplete the company at the expense of Plaintiff.
Zargar, Khajehmiraki, and Davan Investment Corporation thereafter filed a cross-complaint against National alleging National failed to pay back certain loans to Khajehmiraki.
This court appointed a Receiver and set contempt hearings against the defendants. The receivership estate consisted of ATM machines in various states of disrepair; parts and equipment; books; records; communications and other writings concerning NCI’s business; accounts receivable; user IDs; passwords; combinations; passcode keys and other security codes and a nominal amount of cash and income. Some of the ATMs were still in use and generated fees. But those stopped being used because they were not EMV chip-compliant. The receiver had no available cash to load the machines with cash or to upgrade the machines.
The receiver gathered all of the ATMs and related parts and stored them in leased space. The receiver explored the sale but the property was subject to a federal tax lien. Further the machines were worth less than $200 each. The receiver terminated the lease and given the lack of interest by any party or lien holder abandoned the property to the landlord.
The court later terminated the receivership.
Shadsirat sought judgment on the pleadings as to Khajehmiraki’s CROSS COMPLAINT based on certain evidentiary rulings and admissions. The court granted the motion as to NCI but not as to Shadsirat.
The complaint was filed on November 28, 2012. Khajehmiraki’s cross complaint was filed on December 29, 2012. The court earlier determined that the 5 year dismissal statute did not apply to the complaint due to various tolling periods.
The matter came on for court trial on August 12, 14, 15, 26-30, September 23-27, October 3, 4, 7, and 8, 2019 and January 6, 7, 8. 10, 14, and 15, 202 to a conclusion. As set forth in the Judgment filed on or about October 16, 2020, the court ruled for Defendant and against Plaintiff for Plaintiff’s claims against Defendant.
On November 2, 2020, Defendant filed a Memorandum of Costs. Plaintiff now moves to strike and/or tax costs.
Plaintiff/Cross-Defendant’s Motion to Tax Costs is GRANTED, in part.
Plaintiff/Cross-Defendant Behrouz Shadisrat moves the court, under California Rules of Court, rule 3.1700(b) to strike or tax costs sought by Mohammad Khajehmiraki because such costs are improper.
Plaintiff Shadisrat contends under California Rules of Court, rule 3.1700(a), only a prevailing party may claim costs. Plaintiff Shadisrat argues Khajehmiraki defeated Shadsirat’s Complaint and Shadsirat defeated Khajehmiraki’s Cross-Complaint and as a result, neither side prevailed. Moreover, even if Defendant Khajehmiraki’s Offer to Compromise were relevant, it is unsigned and of no force or effect. Alternatively, Plaintiff moves to tax Items #1, 5, 12, 14, and 16.
In opposition, Defendant argues on July 10, 2019, Defendant served Plaintiff with an Offer to Compromise. (Farivar Decl. ¶4, Exh. A.) In the Offer, Defendant offered $5,000.00 in satisfaction of any and all claims. (Farivar Decl. ¶4.) Plaintiff had 30 days from the time of service of the Offer to accept the Offer, but failed to do so. (Farivar Decl. ¶4.) Defendant contends pursuant to Code of Civil Procedure section 998, if an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover their postoffer costs and shall pay the defendant’s costs from the time of the offer. (CCP §998(c)(1).)
The court finds the 998 offer relevant. Code of Civil Procedure section 998 provides if an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment 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. (CCP §998(c)(1).) As mentioned above, Defendant made an offer to settle for $5,000.00 on July 10, 2019 and Plaintiff did not accept the offer. While the court ruled for Cross-Defendant Shadsirat and against Cross-Complainant Khajehmiraki’s on Cross-Complainant’s claims, the court also ruled for Defendant Khajehmiraki and against Plaintiff Shadsirat for his claims against Defendant Khajehmiraki. Since the Plaintiff failed to obtain a more favorable judgment, i.e., a judgment for more than $5,000.00, the Plaintiff shall not recover his post-offer costs and the Defendant shall recover their post-offer costs. Moreover, the court finds the Offer is signed by the Defendant on page 3. (Farivar Decl. ¶4, Exh. A.)
Turning to Plaintiff’s request to tax Items #1, 5, 12, 14, and 16, the court strikes $207.18 in item 14, $40.08 for postage, $2925 for trial exhibits in item 12, $1,500.00 for legal research in item 16, and $495.00 in “appearance” costs in item 16.
Code of Civil Procedure section 1033.5 sets forth the costs recoverable by the prevailing party. To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 244.) 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. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.) 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. (Ibid.)
As for Item #1, Plaintiff argues none of the fees listed on Khajehmiraki’s summary are filing fees because they do not match any fees identified on the Court list of filing fees (e.g., $435 appearance, $60 motion). However, as noted by Defendant, these filing fees are the credit card percentage fee of 2.75 percent that is imposed by the court’s Journal Technologies Court Portal and that these costs are recoverable. The court finds that this item of costs is reasonably necessary to the conduct of litigation and reasonable in amount, and the court DENIES the request to tax this item of costs. (See CCP §1033.5(c)(2), (3).)
As for Item #5, Plaintiff argues Khajehmiraki fails to identify the $99 service of process fee on 11-26-19 and indeed, the process was served after trial began in August 2019. Defendant attests the $99.00 service of process fee was for service of Defendant’s Meet and Confer/Safe Harbor Letter pursuant to CCP §128.7 along with the 128.7 Motion. (Farivar Decl. ¶7, Exh. C.) Plaintiff has failed to cite to any specific statute or case law that would disallow service of process costs incurred during trial and moreover, that the costs of service were not reasonably necessary to the conduct of the litigation.
As for Item #12, Plaintiff argues Khajehmiraki seeks $3,000 for models, enlargements, and photocopies of exhibits, but used no models or enlargements at trial. At $.15 per page, Khajehmiraki claims 20,000 trial copies. Although Plaintiff’s thirteen trial notebooks provided to Khajehmiraki contained over 10,000 copies, Khajehmiraki’s one trial notebook contained less than 500 copies. Moreover, exhibits that were not used at trial are not recoverable under section 1033.5(a)(13).
In opposition, Defendant argues the 20,000 pages of printing should be recoverable as this printing was solely for trial exhibits and documents printed in the course of the trial and used for that purpose. “[T]here is a split in authority on whether costs related to exhibits ultimately not used at trial are recoverable.” (Segal v. Asics America Corporation (2020) 50 Cal.App.5th 659.) Several cases, including Segal, have held that costs for exhibits not used at trial are recoverable as discretionary costs because these costs are not specifically allowable under subdivision (a) and not specifically prohibited under subdivision (b). (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856; Applegate v. St. Francis Lutheran Church (1994) 23 Cal.App.4th 361, 364-65.) Segal also concluded that costs for exhibits not used at trial are recoverable as allowable costs under subdivision (a)(13). Conversely, as cited by Plaintiff, there is one published case that has determined that costs for exhibits not used at trial are not recoverable as discretionary costs or not recoverable as allowable costs under subdivision (a)(13). (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1559).
The court cannot find any support in the record for defendant’s claim of $3000 for copying charges for trial exhibits or enlargements. At most, defendant has substantiated that he copied approximately 500 pages as trial exhibits. At the rate of $.15 per page, defendant may recover $75 for those exhibits; the remainder of this cost item is stricken, or $2925.
As for Item #14, Plaintiff argues Khajehmiraki fails to itemize or support this request. Item #14 is for fees for electronic filing or service. In opposition, Defendant contends this cost is itemized in the Costs Memorandum under “Court Document Retrieval Fee” for $142.18 and “Misc – PACER” for $65.00 -- the sum of both being $207.18. Defendant argues the Retrieval Fees are the court document retrieval fees incurred by Defendant when downloading documents from the court docket and were necessary to the litigation so that Defendant’s counsel had access to all information and documents when defending Defendant against Plaintiff’s claims. Moreover, the Pacer Fees are the fees incurred by Defendant when accessing the docket for Zargar’s bankruptcy case in 2011 and Defendant’s counsel extensively used these documents downloaded from Pacer when questioning Plaintiff during trial.
Here, however, the “Court Document Retrieval Fee” does not constitute electronic filing or service fees. Neither does the “Misc – PACER”. Accordingly, the court strikes the $207.18.
Lastly, as for Item #16, Plaintiff seeks to strike Defendant’s claim for postage, milage and parking, and CourtCall/Research. First, Defendant agrees to exclude postage costs from the Memorandum. However, Defendant argues Pursuant to CCP § 1033.5(c)(4), non-deposition mileage and parking expenses are allowable in the Court’s discretion. The court disagrees. “Section 1033.5, subdivision (a)(3) clearly contemplates recovery of travel costs incurred by counsel to attend depositions. (Foothill–De Anza Community College Dist. v. Emerich, supra, 158 Cal.App.4th 11, 30, 69 Cal.Rptr.3d 678.) By negative implication, this statute does not provide for recovery of local travel expenses by attorneys and other firm employees unrelated to attending depositions (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775–776, 23 Cal.Rptr.2d 810 (Ladas)) nor does it allow recovery for “meals eaten while attending local depositions.” (Id. at p. 774, 23 Cal.Rptr.2d 810.)” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 72.)
Next, Defendant argues the CourtCall fees are recoverable. The court agrees. The fee paid to CourtCall is a fee for making a CourtCall appearance. It is not a fee for the use of a telephone and the CourtCall appearances were necessary to conduct the litigation. However, the court finds the research fees not proper. Expenses incurred for computer legal research are not compensable as costs. (Ladas, supra, 19 Cal.App.4th at p. 776.)
Accordingly, the court strikes $207.18 in item 14, $40.08 for postage, $2925 in trial exhibits from item 12, $1,500.00 for legal research in item 16, and $495.00 in “appearance” costs in item 16.
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