This case was last updated from Los Angeles County Superior Courts on 07/03/2019 at 05:06:58 (UTC).

GUL JAISINGHANI VS ARMEN R. TER-OGANESIAN

Case Summary

On 02/05/2015 GUL JAISINGHANI filed a Property - Other Property Fraud lawsuit against ARMEN R TER-OGANESIAN. This case was filed in Los Angeles County Superior Courts, Santa Monica Courthouse located in Los Angeles, California. The Judge overseeing this case is NANCY L. NEWMAN. The case status is Pending - Other Pending.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****3736

  • Filing Date:

    02/05/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Property Fraud

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Santa Monica Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

NANCY L. NEWMAN

 

Party Details

Plaintiff

JAISINGHANI GUL

Defendants and Cross Plaintiffs

TER-OHANESIAN ARMEN R.

ARMEN R. TER-OGANESIAN

MALIBU KNOLL LLC

ESCALANTS EMILIO

MALIBU KNOJJ GREEN DEVELOPMENT LLC

ENCISO RODOLFO LAZARO

GEOSYSTEMS INC.

SOUTHWEST GEOTECHNICAL INC.

UNITED REFRRIGERATION INC.

SAGHERIAN JONATHAN

YACOUB SHINO

ARROYO BUILDING MATERIALS INC.

J. KARAM & ASSOCIATES INC.

SHINO YACOUB

PA UNITED REFRIGERATION INC.

TER-OGANESIAN ARMEN R.

Cross Defendants

ABKARIAN RAFFI

SHARMA JILL

RAFFI ABKARIAN

16 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorneys

DAVID T. AZRIN

HALIMI GEORGE M.

AZRIN DAVID T.

GALLET DREYER & BERKEY

Defendant and Cross Plaintiff Attorneys

GA LAW GROUP

JOHNSON MATTHEW WILLIAM

ENRIGHT MADELYN A.

GALLET DRUYER & BERKEY

BARMASSE MICHAEL EDWARD

KARAM JOHNSON

MURTAUGH TREGLIA STERN & DEILY LLP

ALAN FASSONAKI

SHINMOTO LYNN ASAYO

NEVILLE DAVE LENNART

HYNICK GEORGE R. LAW OFFICES OF

KIRK & MYERS

SHINMOTO LYNN A.

AKWO GEORGE E.

COLLINS COLLINS MUIR & STEWART LLP

Cross Defendant Attorney

SONA ABKARIAN

3 More Attorneys Available

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 07/01/2019
  • Declaration (BY AKWO IN SUPPORT OF MOTION TO INSTRUCT JURY RE SC123486 PRIOR JUDGMENT); Filed by Armen R. Ter-Ohanesian (Defendant); Armen R. Ter-Oganesian (Legacy Party); Anil Sharma (Defendant)

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  • 07/01/2019
  • Motion re: (TO INSTRUCT JURY RE SC123486 PRIOR JUDGMENT); Filed by Malibu Knoll, LLC (Defendant); Malibu Knojj Green Development, LLC (Defendant)

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  • 06/28/2019
  • Declaration in Support of Ex Parte Application; Filed by RAFFI ABKARIAN (Cross-Defendant)

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  • 06/28/2019
  • Statement of the Case; Filed by Advanced Engineering & Consulting (Defendant)

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  • 06/28/2019
  • Jury Instructions; Filed by Advanced Engineering & Consulting (Defendant)

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  • 06/28/2019
  • Witness List; Filed by Advanced Engineering & Consulting (Defendant)

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  • 06/28/2019
  • Exhibit List; Filed by Advanced Engineering & Consulting (Defendant)

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  • 06/28/2019
  • Ex Parte Application (to Continue Trial Date); Filed by RAFFI ABKARIAN (Cross-Defendant)

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  • 06/27/2019
  • Exhibit List; Filed by Armen R. Ter-Ohanesian (Defendant); Armen R. Ter-Oganesian (Legacy Party); Anil Sharma (Defendant)

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  • 06/27/2019
  • Statement of the Case; Filed by Armen R. Ter-Ohanesian (Defendant); Armen R. Ter-Oganesian (Legacy Party); Anil Sharma (Defendant)

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635 More Docket Entries
  • 03/23/2015
  • Answer; Filed by Armen R. Ter-Ohanesian (Defendant); Armen R. Ter-Oganesian (Legacy Party)

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  • 03/23/2015
  • Answer to Complaint Filed (* DEMAND FOR JURY TRIAL ); Filed by Attorney for Defendant

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  • 03/20/2015
  • Proof-Service/Summons; Filed by Gul Jaisinghani (Plaintiff)

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  • 03/20/2015
  • Proof-Service/Summons; Filed by Gul Jaisinghani (Plaintiff)

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  • 03/20/2015
  • Proof-Service/Summons; Filed by Attorney for Plaintiff

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  • 02/05/2015
  • Summons Filed; Filed by Attorney for Plaintiff

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  • 02/05/2015
  • Complaint Filed

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  • 02/05/2015
  • Civil Case Cover Sheet

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  • 02/05/2015
  • Summons; Filed by Plaintiff

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  • 02/05/2015
  • Complaint; Filed by Gul Jaisinghani (Plaintiff)

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Tentative Rulings

Case Number: SC123736    Hearing Date: November 12, 2020    Dept: U

The Court has considered the proposed judgments submitted by Plaintiff Gul Jaisinghani and certain Defendants, as well as the objections submitted by Plaintiff and Defendant J. Karam and Associates, Inc.  Posted with this tentative is a revised version of the proposed judgments that the Court intends to enter as a judgment in this action.  The Court explains its ruling below. 

First, Plaintiff’s claims against Defendant J. Karam and Associates, Inc. were explicitly abated and severed from the claims brought to trial because the corporation was not represented by counsel at trial.  Regardless of the findings made in the special verdict, those claims were not tried to the jury and, thus, cannot be included in the Judgment.  Whether Defendant J. Karam and Associates, Inc. can use any of the special verdict forms to dispose of Plaintiff’s claims against it must be raised by separate motion, not by simply inserting this defendant’s name into the Judgment.

Second, judgments are often entered before the Court determines the amount of costs that may be assessed in favor of the prevailing party or parties.  Generally, such judgments include blanks that would allow the Court to interlineate the costs awarded at a later time.  In this case, Defendants have filed  their cost bills before the judgment was entered.  If they wish to have a ruling on their pending cost bills now before the judgment is entered, the Court finds that such a procedure is available to them, but that this may preclude them from supplementing their requests at a later time if further costs are incurred following Plaintiff’s potential filing of potential post-judgment motions.  Defendants have the option of seeking a ruling now or reserving the option of supplementing their request following the Court’s entry of judgment.   

Plaintiff is ordered to submit a proposed judgment reflecting this Court’s rulings in connection with the upcoming hearing on the form of the judgment. 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

GUL JAISINGHANI

ARMEN R. TER-OGANESIAN, an individual d/b/a ARMEN R. TER-OGANESIAN, G.C., et al.,

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[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO TAX COSTS OF DEFENDANT AEC

Dept. U

8:30 a.m.

November 12, 2020

I. BACKGROUND

This matter was tried before a jury on February 3, 2020 through February 25, 2020. The jury deliberated before returning a special verdict in favor of Defendants, thereby, Gul Jaisinghani (Plaintiff) took nothing from his complaint.

Defendant Advanced Engineering and Consulting, Inc. (AEC) submitted its Memorandum of Costs on March 6, 2020. Plaintiff challenges AEC’s costs by filing this motion to tax costs on March 23, 2020. This motion was heard by the Court on August 21, 2020. AEC was ordered to provide supplemental invoices and other documentation supporting their memorandum of costs by September 4, 2020. The motion hearing was continued to this date.

Both Plaintiff and AEC filed supplemental briefs in response to the Court’s August 21, 2020 order.

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II. LEGAL STANDARD & DISCUSSION

A. Timeliness

Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. However, the parties can agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b)(3).)

Here, review of AEC’s Memorandum of Costs shows that it was served electronically on all parties on March 6, 2020. Fifteen court days from this date, plus two for electronic service, made Plaintiff’s deadline to file this motion March 23, 2020. As Plaintiff filed this motion on March 23, 2020, this motion is timely.  

Plaintiff argues that AEC’s Memorandum of Costs is premature because the Court has not yet entered a judgment and the time period for Plaintiff to file post-trials motions has not expired. Additionally, there are multiple default judgments pending where Plaintiff could be the prevailing party. Plaintiff may also be subject to additional expenses once other Defendants submit their Memorandum of Costs and, not until then, will Plaintiff be able to completely ascertain which of AEC’s costs are duplicative.

These arguments are not well-taken. A prevailing party includes “a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Code Civ. Proc., §1032(a)(4).) Thus, AEC is the prevailing party against Plaintiff and the result of any pending default judgments will not alter this judgment.

The premature filing of a memorandum of costs is treated as “a mere irregularity at best” that does not constitute reversible error absent a showing of prejudice. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880.)¿Further, Courts treat prematurely filed cost bills as being timely filed. (Ibid.) The Plaintiff offers no evidence that the filing of the memorandum of costs before the entry of judgment caused any prejudice.  Thus, the Court finds that the Memorandum of Costs was timely filed.

B. Allowable Expenses

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 (l992) 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, 773-774.)  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.)  

A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred.¿(Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.)¿A party seeking to tax costs must provide evidence to rebut this prima facie showing.¿(Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.)¿Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred.¿(Ibid.)¿

Deposition Costs

Plaintiff argues that AEC’s request for deposition fees is unreasonable because it was not the only party questioning deponents at each deposition. Further, it is likely that other Defendants who also attended the same depositions contributed to the cost of each transcript. Plaintiff also contends that AEC’s depositions of Plaintiff and his two experts were unnecessary because AEC did not call them as trial witnesses.

In response, AEC demonstrated that it deposed Plaintiff, Steve Norris, and Steven Cohen. Plaintiff named himself, in addition to Norris and Cohen, as expert witnesses. Thereby, AEC argues deposing these three individuals was necessary because Plaintiff named them as experts. Attached as Exhibit C to the declaration of Mark L. Armstrong (Armstrong), AEC submits invoices reflecting the funds it expended in conducting these three depositions. These invoices show AEC paid Elite Court Reporting $5,568.23, Rocket Reporters $8,029.90, and $6,768.75 in expert fees. Thus, AEC paid a total of $20,366.88 in deposition costs.

Transcripts and video recordings of “necessary” depositions, fees of certified or registered interpreters for the depositions of parties or witnesses who do not proficiently understand or speak the English language, plus travel expenses to attend depositions, are allowable costs. (Code Civ. Proc., § 1033.5(a)(3); Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1549 (includes travel expenses incurred by out-of-town counsel in attending local depositions); Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557, 1560 (costs of videotaping depositions awarded even though they were not used at trial).)

A party has the right to recover ordinary witness fees incurred to compel the attendance of a witness at a deposition or trial. (Code Civ. Proc. § 1033.5(a)(7); Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 598-602 (ordinary witness fees do not include treating physician's expert witness fees incurred to take deposition).)

While AEC has proven that it paid a total of $20,366.88 in deposition costs, it can recover only $13,598.13 because expert witness fees are not allowable unless ordered by the Court.  The Court did not order AEC to depose Plaintiff, Norris, and Cohen.

Therefore, AEC can recover $13,598.13 for deposition costs.

Jury Fees

Plaintiff contends that it is likely that AEC shared the jury and court reporter fees with the other Defendants and Plaintiff should not have to pay these fees to multiple parties. AEC counters that it only paid for, and only requests recovery for, the portion of the fees it paid. AEC claims Plaintiff’s counsel was present at the discussion with the Court’s clerk apportioning the jury fees among the parties. Despite these arguments, the Court finds that the costs actually incurred by AEC are recoverable. 

Plaintiff demanded a jury trial, therefore, AEC was obligated to pay a portion of the jury fee each day of trial. These fees were determined by the Court and AEC had no discretion not to pay them. Attached as Exhibit B to Armstrong’s declaration are receipts and checks demonstrating that AEC paid $657.36 in jury fees.

A timely payment of the jury fee is a reasonable litigation expense and is recoverable under Code of Civil Procedure § 1033.5(a)(1) even though a jury trial never takes place (e.g., where summary judgment is granted after the date scheduled for the initial case management conference). (Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 576 (payment of jury fee was required to preserve right to jury trial).) Here, a jury trial did take place, thus, it follows that if a party can recover jury fees when a jury trial did not take place, it can certainly recover its share of the jury fees if a trial was conducted.  

Plaintiff concedes that AEC demonstrated that it incurred the reasonable costs of its share of the jury fees.

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Filing Fees

Plaintiff challenges AEC’s request for $2,125 in filing and motion fees on the grounds that they are not substantiated with evidence that they were actually incurred and are unreasonable and unnecessary because AEC did not prevail on any of its motions. Plaintiff also argues that AEC’s request for electronic filing or service are unsubstantiated because AEC fails to identify which motions or filings incurred these fees. These arguments are unpersuasive.

AEC argues its filing fees and costs associated with its motions are reasonable and were incurred despite it not prevailing on these motions. Attached as Exhibit A to Armstrong’s declaration are invoices and receipts showing AEC’s filing fees and costs. AEC demonstrates that it paid: (1) $495 to file and reserve a hearing date for its demurrer with motion to strike on July 19, 2017; (2) $454 to Nationwide Legal to same-day file a motion; (3) $60 ex parte fee; (4) $513.75 to file and reserve a motion hearing for its motion for summary judgment; (5) $240 to file and reserve a hearing for its motions to compel further discovery responses; and (6) $237.30 to One Legal for serving an ex parte application and notice of posting jury fees.

In Naser, surpa, 227 Cal.App.4th 517 at 576, an athletic club was allowed to recover jury fees as a reasonable litigation expense even though a jury trial never occurred because the athletic club was required to pay the fees in order to preserve its right to a jury trial. Similarly, here, even though AEC was unsuccessful on its motions, it still incurred filing and motion fees because it was required to pay these costs in order to reserve its motions on the Court’s calendar.

Therefore, AEC has successfully demonstrated $2,000.05 in filing fees.

Code of Civil Procedure section 998 Offer

Plaintiff asserts that AEC has not proven that its expert witness fees were actually incurred after its section 998 offer was rejected and that this offer was made in bad faith. Plaintiff characterizes it as a “token” offer for far less than the amount of damages suffered by Plaintiff.

AEC reasons that its offer to settle for $25,000 under Code of Civil Procedure section 998 was made in good faith because, when the offer was made, the only document connecting it to this action was a single check for $2,500 made jointly to AEC and JSA Engineering. AEC contends that, if Plaintiff had accepted its offer, Plaintiff would have avoided the costs it is now disputing because Plaintiff would have recovered $25,000 rather than recovering nothing at trial.

Attached as Exhibit E to Armstrong’s declaration are invoices demonstrating AEC paid $10,033.92 to DRC Engineering for witness fees. Pursuant to Code of Civil Procedure section 1033.5, expert witness fees are allowable as costs if the expert witnesses were ordered by the court. (Code Civ. Proc., § 1033.5(a)(8).) Expert witness fees are not allowable as costs when not ordered by the court. (Id., § 1033.5(b)(1).)  Pursuant to Code of Civil Procedure section 998, however, the court may require a plaintiff to pay a reasonable sum to cover a defendant’s expert witness expenses actually incurred and reasonably necessary if the defendant makes an offer to compromise that is not accepted by plaintiff who fails to obtain a more favorable judgment or award. (Id., § 998(c)(1).)

Here, Plaintiff rejected AEC’s section 998 offer and then recovered nothing at trial. AEC made its section 998 offer on April 5, 2019. The expert fees invoices are dated May 4, 2019, June 8, 2019, August 3, 2019, and February 8, 2020. Given AEC’s estimated potential liability at the time of its section 998 offer and the invoices reflecting that the expert witness fees were, in fact, incurred after the section 998 offer was made, the Court finds AEC’s deposition costs to be properly paid by Plaintiff.   Plaintiff should shoulder the cost incurred by AEC in defending this action after rejection of its offer that would have benefited Plaintiff more than proceeding to trial.

Service Costs

Plaintiff asserts AEC cannot recover costs for serving Ms. Arvayo because she was not called as a witness and it is unclear whether AEC served her. AEC counters that service fees incurred in trying to serve Ms. Arvayo with a deposition subpoena were necessary to the litigation because she was identified by Plaintiff as the person who might have been responsible for depositing a check into AEC’s account. Ms. Aryayo falsely declared that she did not deposit this check, while Plaintiff maintained that she did, therefore, creating the disputed material fact preventing AEC’s motion for summary judgment from resolving this suit. Plaintiff’s challenge to this cost is unpersuasive.

Despite Plaintiff’s contention otherwise, AEC argues it did not “cancel” its attempts to serve Ms. Arvayo, rather she eluded being served with process. Had AEC continued to attempt to serve her, it would necessarily be requesting more service costs than it is now. Attached as Exhibit D demonstrates that AEC paid First Legal Network $523.91 in service costs for attempting service on Arvayo.  AEC is entitled to recover these fees from Plaintiff.

Court Reporter Costs

Attached as Exhibit F to Armstrong’s declaration are invoices demonstrating that AEC was charged a total of $5,257.50 from Jedi Reporters, Inc. AEC also includes checks issued to Jedi Reporter, Inc. totaling this same amount.  These costs are recoverable under the Code.

Electronic Filing and Service

Attached as Exhibit G are invoices from One Legal totaling $816.71 and Nationwide Legal totaling $185.60 equaling an overall total of $1,002.31. Under Code of Civil Procedure section 1033.5(c), fees for electronic filing or service of documents through an electronic filing service provider are allowable when a court requires or orders electronic filing or service of documents. Here, the Court requires attorneys to electronically file documents for submission. Therefore, these costs are allowable.

III. CONCLUSION

For the foregoing reasons, Plaintiff’s motion to tax costs is GRANTED only as to the expert witness fees incurred in deposing Plaintiff, Norris, and Cohen. The remainder of Plaintiff’s motion is DENIED.

AEC is ordered to give notice of the Court’s ruling.

DATED: November 12, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

GUL JAISINGHANI

ARMEN R. TER-OGANESIAN, an individual d/b/a ARMEN R. TER-OGANESIAN, G.C., et al.,

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[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO TAX COSTS OF THE SHARMA DEFENDANTS

Dept. U

8:30 a.m.

November 12, 2020

I. BACKGROUND

This matter was tried before a jury on February 3, 2020 through February 25, 2020. The jury deliberated before returning a special verdict in favor of Defendants, thereby, Gul Jaisinghani (Plaintiff) took nothing from his complaint.

The Sharma Defendants filed a Memorandum of Costs on September 10, 2020. Plaintiff filed this motion to tax the Sharma Defendants’ costs on September 28, 2020.

II. LEGAL STANDARD & DISCUSSION

A. Timeliness

Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. However, the parties can agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b)(3).)

In its August 21, 2020 minute order, the Court ordered the parties to file their Memorandums of Costs by September 11, 2020 and any motions to tax costs by September 28, 2020. Plaintiff filed this motion to tax costs in response to the Sharma Defendants’ September 10, 2020 Memorandum of Costs on September 28, 2020. This motion is timely.

B. Allowable Expenses

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 (l992) 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, 773-774.)  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.)  

A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred.¿(Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.)¿A party seeking to tax costs must provide evidence to rebut this prima facie showing.¿(Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.)¿Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred.¿(Ibid.)¿

The Sharma Defendants’ Memorandum of Costs totals $108,417.36.

Filing and Motion Fees

The Sharma Defendants request $1,357.65 in filing and motion fees. Attached as Exhibit A to their Memorandum of Costs are invoices from Rapid Legal totaling $1,357.65. These fees covered filing by the Sharma Defendants of their: (1) answer; (2) notice of motion; (3) mediation brief; (4) demurrer; (5) case management statement; (6) answer to the third amended complaint; (7) verdict form retrieval; and (8) answer to the amended complaint.

Plaintiff argues the Sharma Defendants should not be able to recover the costs of filing the mediation brief and demurrer because neither were successful in resolving the case and, thus, unnecessary to resolving the case.

In Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 517, 576, an athletic club was allowed to recover jury fees as a reasonable litigation expense even though a jury trial never occurred because the athletic club was required to pay the fees in order to preserve its right to a jury trial. Similarly, here, even though the documents filed did not resolve the case, the Sharma Defendants still incurred filing and motion fees because it was required to pay these costs in order to reserve hearings on the Court’s calendar.

Jury Fees

The Sharma Defendants request $2,734.67 in jury fees. Attached as Exhibit B to the Sharma Defendants’ Memorandum of Costs is an invoice from Rapid Legal, receipts from the court clerk’s office, and copies of checks showing that they spent $2,734.67 on jury fees.  The Sharma Defendants have demonstrated their right to recover jury fees.

Deposition Costs

The Sharma Defendants request $2,486.96 in deposition costs. Attached as Exhibit C is an invoice from Rocket Reporters showing the Sharma Defendants ordered a certified deposition transcript of Steven Cohen’s deposition for $2,486,96.

Plaintiff argues these deposition costs were shared among all defendants, not just the Sharma Defendants. Therefore, he challenges these costs as duplicative. This argument is not well-taken because, while AEC paid to conduct the deposition, the costs of conducting a deposition and obtaining a copy of the resulting deposition transcript are separate expenses. The costs claimed by the Sharma Defendants are only for obtaining a certified copy of the deposition of Cohen.

Service of Process

The Sharma Defendants request $1,500 for service of process costs. Attached as Exhibit C is a receipt from MUFG Union Bank for a $1,500 deposit with the notations “Subpoena,” “U.S. Bank,” “Chase,” “Zions Bank,” and “Construction Case WST.”

Plaintiff challenges this proof of cost incurred as vague and unclear. In response to this contention, the Sharma Defendants attached invoices to their opposition demonstrating that they paid $1,500 to serve trial subpoenas on witnesses intended to be called at trial.  The Court finds that the Sharma Defendants have adequately demonstrated that the costs were incurred in defending this case and recoverable through their bill of costs.

Court Reporter Fees

The Sharma Defendants request $17,739.30 in court reporter fees as established by statute. Attached as Exhibit D are invoices from Elite Court Reporting totaling $3,785.20 and invoices and payment receipts from Jedi Reporter, Inc. and checks issued to Jedi Reporter, Inc. from the Sharma Defendants totaling $13,854.10. In opposition to this motion, the Sharma Defendants have attached evidence of additional check payments and $2,851.68 in unpaid costs. Combined with the original amount established in the Memorandum of Costs, the Sharma Defendants have shown they incurred $17,739.30 in court reporter fees.

Models, Enlargements, and Photocopies of Exhibits

The Sharma Defendants request $82,488.78 in costs for models, enlargements, and photocopies of exhibits. Attached as Exhibit F are receipts from FedEx, Office Depot, Staples, and Vertex totaling $13,488.78 spent on printing, photocopying, and duplicating trial exhibits. An order and payment receipt for $537.52 from Exhibit Indexes is also attached showing that the Sharma Defendants paid for various dividers for the exhibits. In its opposition to this motion, the Sharma Defendants attached additional invoices reflecting $69,000. Thus, the total demonstrated amount now equals $82,488.78. The Sharma Defendants state this cost covered preparing, copying, and binding 18 volumes which required reviewing over 30,000 pages of paper and other media.

Expenses for models, enlargements, photocopies, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, that are “reasonably helpful to aid the trier of fact” are recoverable costs. (Code Civ. Proc. § 1033.5(a)(13); Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 90-91 (costs awarded for exhibits and blowups used at trial); Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1623 (rental of overhead projector used at trial was recoverable cost item).)

Because the costs sought to be recovered appear to be excessive $82,488.78, the Court will entertain further argument about whether some or all of these costs arose from preparing the exhibit binders used at trial.

III. CONCLUSION

For the foregoing reasons, Plaintiff’s motion to tax the Sharma Defendants’ costs is DENIED as to all claimed costs, except with respect to the request for reimbursement of the  costs of the models, enlargements, and photocopies of trial exhibits, as to which the Court will seek clarification at the hearing.

The Sharma Defendants are ordered to give notice of the Court’s ruling.

DATED: November 12, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

GUL JAISINGHANI

ARMEN R. TER-OGANESIAN, an individual d/b/a ARMEN R. TER-OGANESIAN, G.C., et al.,

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[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO TAX COSTS OF DEFENDANT ABAKARIAN

Dept. U

8:30 a.m.

November 12, 2020

I. BACKGROUND

This matter was tried before a jury on February 3, 2020 through February 25, 2020. The jury deliberated before returning a special verdict in favor of Defendants, thereby, Gul Jaisinghani (Plaintiff) took nothing from his complaint.

Defendant Raffi Abakarian (Abakarian) filed a Memorandum of Costs on September 11, 2020, the deadline ordered by the Court in its August 21, 2020 minute order. Plaintiff filed this motion to tax Abakarian’s costs on September 28, 2020. In response to this motion, Abakarian filed a notice of joinder in the Sharma Defendants’ opposition to Plaintiff’s motion to tax their costs.

II. LEGAL STANDARD & DISCUSSION

A. Timeliness

Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. However, the parties can agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b)(3).)

Here, in its August 21, 2020 minute order, the Court ordered the parties to file their Memorandums of Costs by September 11, 2020 and any motions to tax by September 28, 2020. Plaintiff filed this motion to tax in response to Abakarian’s September 11, 2020 Memorandum of Costs on September 28, 2020. This motion is timely.

B. Allowable Expenses

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 (l992) 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, 773-774.)  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.)  

A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred.¿(Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.)¿A party seeking to tax costs must provide evidence to rebut this prima facie showing.¿(Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.)¿Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred.¿(Ibid.)¿

Abakarian’s Memorandum of Costs totals $1,829.77 for the costs of: (1) filing and motion fees; (2) deposition costs; and (3) fees for electronic service.

Filing and Motion Fees

Abakarian requests $435 in filing and motion fees. Attached as Exhibit A is a screenshot of a canceled reservation with the Court for Abakarian’s demurrer without motion to strike. The nonrefundable fee for filing the pleading was $435.00. Why the hearing was cancelled is not explained. Nevertheless, Abarkarian had to pay the filing fee in order to file and reserve the motion hearing with the Court and to make his appearance in this case.

In Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 576, an athletic club was allowed to recover jury fees as a reasonable litigation expense even though a jury trial never occurred because the athletic club was required to pay the fees in order to preserve its right to a jury trial. Similarly, here, even though Abakarian’s motion was, ultimately, taken off calendar, he still incurred filing and motion fees because it was required to pay these costs in order to reserve its motions on the Court’s calendar.

Deposition Costs

Abakarian requests $1,298.02 in deposition costs. Attached as Exhibit B is an invoice from Elite Court Reporting billing Abakarian $1,967 for an original and copy of Plaintiff’s deposition transcript. A receipt from Elite Court Reporting is attached showing that Abakarian paid $655.67 towards its invoice.

Additionally, attached as Exhibit D is Sona Abkarian’s declaration stating she traveled a total of 846.8 miles to attend the depositions of Steven Norris, Steven Cohen, and Plaintiff. Her travel expenses incurred in attending these depositions was $642.35.

Transcripts and video recordings of “necessary” depositions, fees of certified or registered interpreters for the depositions of parties or witnesses who do not proficiently understand or speak the English language, plus travel expenses to attend depositions, are allowable costs. (Code Civ. Proc., § 1033.5(a)(3); Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1549 (includes travel expenses incurred by out-of-town counsel in attending local depositions); Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557, 1560 (costs of videotaping depositions awarded even though they were not used at trial).)

A party has the right to recover ordinary witness fees incurred to compel the attendance of a witness at a deposition or trial. (Code Civ. Proc. § 1033.5(a)(7); Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 598-602 (ordinary witness fees do not include treating physician's expert witness fees incurred to take deposition).)

Therefore, Abakarian’s costs for obtaining the transcript from Plaintiff’s deposition and traveling to and from the depositions of Plaintiff, Norris, and Cohen are allowable expenses.

Plaintiff argues the cost to Abakarian in obtaining the deposition transcript is unreasonable because only one-third of the transcript was requested rather than all volumes. This argument is not well-taken. Plaintiff also contends that this cost was already claimed by AEC because it was the party that noticed the deposition. However, this argument is also unpersuasive because, while AEC expended the funds in conducting the deposition, Abakarian had to pay to receive his own copy of the deposition transcript. The fees for conducting a deposition and requesting a resulting deposition transcript are independent of each other.

Fees for Electronic Service

Abakarian requests $96.75 in fees for electronic filing or service. Attached as Exhibit C are receipts from the Court showing Abakarian paid $61.75 to file a motion and $15 to appear for a hearing telephonically. A refund order for $20 is also attached. However, while the refund order reflects the case number, it does not show what the original $20 was paid for nor how it was connected to this action.

Under Code of Civil Procedure section 1033.5(c), fees for electronic filing or service of documents through an electronic filing service provider are allowable when a court requires or orders electronic filing or service of documents. Here, the Court requires attorneys to electronically file documents for submission. Therefore, these costs would be allowable if more detail was attached to each cost.

Plaintiff challenges the lack of specificity in Abakarian’s attachments. Plaintiff questions which motion Abakarian paid to file and which hearing he paid $15 to appear telephonically. This argument is well-taken in addition to the unidentified $20 refund order.

C. CONCLUSION

For the foregoing reasons, Plaintiff’s motion to tax Abakarian’s costs is GRANTED as to the Fees for Electronic Service and DENIED to all other claimed costs.

Abakarian is ordered to give notice of the Court’s ruling.

DATED: November 12, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court

Case Number: SC123736    Hearing Date: August 21, 2020    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

GUL JAISINGHANI

Plaintiff,

vs.

ARMEN R. TER-OGANESIAN, an individual d/b/a ARMEN R. TER-OGANESIAN, G.C., et al.,

Defendants.

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CASE NO: SC123736

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO TAX COSTS OF DEFENDANT AEC

Dept. U

8:30 a.m.

August 21, 2020

I. BACKGROUND

This matter was tried before a jury on February 3, 2020 through February 25, 2020. The jury deliberated before returning a special verdict in favor of Defendants, thereby, Gul Jaisinghani (Plaintiff) took nothing from his complaint.

Defendant Advanced Engineering and Consulting, Inc. (AEC) submitted its Memorandum of Costs on March 6, 2020. Plaintiff challenged AEC’s costs by filing this motion to tax costs on March 23, 2020.

II. LEGAL STANDARD & DISCUSSION

a. Timeliness

Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. However, the parties can agree to extend the time for serving and filing the cost memorandum and a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b)(3).)

Here, review of AEC’s Memorandum of Costs shows that it was served electronically on all parties on March 6, 2020. Fifteen court days from this date, plus two for electronic service, made Plaintiff’s deadline to file this motion March 23, 2020. As Plaintiff filed this motion on March 23, 2020, the motion is timely.

b. Allowable Expenses

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 (l992) 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, 773-774.) 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.)

A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred.¿(Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.)¿A party seeking to tax costs must provide evidence to rebut this prima facie showing.¿(Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.)¿Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred.¿(Ibid.)¿

Initially, a review of Plaintiff’s Memorandum of Costs demonstrates that the expenses claimed are allowable items under Code of Civil Procedure section 1033.5.

Plaintiff argues that AEC’s Memorandum of Costs is premature because the Court has not yet entered a judgment and the time period for Plaintiff to file post-trials motions has not expired. Additionally, there are multiple default judgments pending where Plaintiff could be the prevailing party. Plaintiff may also be subject to additional expenses once other Defendants submit their Memorandum of Costs and, not until then, will Plaintiff be able to completely ascertain which of AEC’s costs are duplicative.

These arguments are not well-taken. A prevailing party includes “a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Code Civ. Proc., §1032(a)(4).) Thus, AEC is the prevailing party against Plaintiff and the result of any pending default judgments will not alter this judgment.

The premature filing of a memorandum of costs is treated as “a mere irregularity at best” that does not constitute reversible error absent a showing of prejudice. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880.)¿Further, Courts treat prematurely filed cost bills as being timely filed. (Ibid.) The Plaintiff offers no evidence that the filing of the memorandum of costs before the entry of judgment caused any prejudice.

Next, Plaintiff challenges AEC’s request for $2,125 in filing and motion fees on the grounds that they are not substantiated with evidence that they were actually incurred and are unreasonable and unnecessary because AEC did not prevail on any of its motions. Plaintiff also argues that AEC’s request for electronic filing or service are unsubstantiated because AEC fails to identify which motions or filings incurred these fees. These arguments are unpersuasive.

In Naser v. Lakeridge Atheltic Club (2014) 227 Cal.App.4th 517, 576, an athletic club was allowed to recover jury fees as a reasonable litigation expense even though a jury trial never occurred because the athletic club was required to pay the fees in order to preserve its right to a jury trial. Similarly, here, even though AEC was unsuccessful on its motions, it still incurred filing and motion fees because it was required to pay these costs in order to reserve its motions on the Court’s calendar. Therefore, Plaintiff’s challenge to AEC’s $2,125 in filing and motion fees is rejected.

Plaintiff contends that it is likely that AEC shared the jury and court reporter fees with the other Defendants and Plaintiff should not have to pay these fees to multiple parties. AEC counters that it only paid for, and only requests recovery for, the portion of the fees it paid. AEC claims Plaintiff’s counsel was present at the discussion with the Court’s clerk apportioning the jury fees among the parties. Despite these arguments, the Court finds that the costs actually incurred by AEC are recoverable.

Likewise, Plaintiff argues that AEC’s request for deposition fees is unreasonable because it was not the only party questioning deponents at each deposition. Further, it is likely that other Defendants who also attended the same depositions contributed to the cost of each transcript. Plaintiff also contends that AEC’s depositions of Plaintiff and his two experts were unnecessary because AEC did not call them as trial witnesses.

AEC counters by pointing out that Plaintiff provides no evidence that any other Defendant contributed to the deposition costs requested. Further, AEC argues that deposing Plaintiff and his experts was reasonable and necessary because they were the only witnesses who could implicate any potential liability by AEC. While AEC did not call these witnesses during trial, AEC did use their deposition testimony to prepare for trial and impeach both Plaintiff and one of the experts at trial. Based on this argument by AEC, the Court finds the deposition costs to be reasonably incurred and in reasonable amounts.

Plaintiff asserts AEC cannot recover costs for serving Ms. Arvayo because she was not called as a witness and it is unclear what AEC served her. AEC counters that service fees incurred in trying to serve Ms. Arvayo with a deposition subpoena were necessary to the litigation because she was identified by Plaintiff as the person who might have been responsible for depositing a check into AEC’s account. Ms. Aryayo falsely declared that she did not deposit this check, while Plaintiff maintained that she did, therefore, creating the disputed material fact preventing AEC’s motion for summary judgment from resolving this suit. Plaintiff’s challenge to this cost is unpersuasive.

Plaintiff asserts that AEC has not proven that its witness fees were actually incurred after its section 998 offer was rejected and that this offer was made in bad faith. Plaintiff characterizes it as a “token” offer for far less than the amount of damages suffered by Plaintiff.

AEC maintains that its section 998 offer was made in good faith because, when it was made, there was only a $2,500 check connecting AEC to this litigation. Therefore, the Court does not agree with Plaintiff’s argument that he should be absolved of the consequences of his rejections of AEC’s section 998 offer of $25,000 because of his view that the total damages were $4,000,000.

Pursuant to Code of Civil Procedure section 1033.5, expert witness fees are allowable as costs if the expert witnesses were ordered by the court. (Code Civ. Proc., § 1033.5(a)(8).) Expert witness fees are not allowable as costs when not ordered by the court. (Id., § 1033.5(b)(1).) However, pursuant to Code of Civil Procedure section 998, the court may require a plaintiff to pay a reasonable sum to cover a defendant’s expert witness expenses actually incurred and reasonably necessary if the defendant makes an offer to compromise that is not accepted by plaintiff who fails to obtain a more favorable judgment or award. (Id., § 998(c)(1).)

Here, AEC made its section 998 offer on April 5, 2019. The expert fees invoices are dated May 4, 2019, June 8, 2019, August 3, 2019, and February 8, 2020. Given AEC’s estimated potential liability at the time of its section 998 offer and the invoices reflecting that the expert witness fees were, in fact, incurred after the section 998 offer was made, the Court finds AEC’s deposition costs to be properly paid by Plaintiff.

III. CONCLUSION

For the foregoing reasons, Plaintiff’s motion to tax costs is DENIED. AEC is entitled to recover a total of $37,674.41 in costs as one of the prevailing parties in this case.

AEC is ordered to give notice of the Court’s ruling.

DATED: August 21, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court

Case Number: SC123736    Hearing Date: January 24, 2020    Dept: P

 

TENTATIVE RULING

Gul Jaisinghani v. Armen Ter-Oganesian, et al. Case No. SC123736

Hearing Date: January 24, 2020

Defendants’ Motion to Instruct Jury on the Findings of Prior Judgment Case SC123486

In 2016 plaintiff Jaisinghani and the Sharma defendants went to trial in case no. SC123486, where the jury found Jaisinghani and defendant Sharma’s company, Malibu Knoll Green Development, LLC, built a house in Malibu as a joint venture (“the Malibu project”). The jury awarded Jaisinghani title to the house and Malibu Green Development damages for Jaisinghani’s negligent misrepresentation during the building. The jury also determined defendant Sharma owed no fiduciary duty to Jaisinghani.

Here, Jaisinghani sues for construction defects. Defendants moved for summary judgment on res judicata grounds; the court denied, finding issues related to construction defects had not been litigated in SC123486. Defendants now move to instruct the jury on the prior judgment in SC123486 and associated findings.

“A purported writing in the custody of a public entity, or of an entry in such a writing, is prima facie evidence of the existence and content of such writing[.]” Cal. Evid. Code §1530(a). A court’s prior rulings are judicially noticeable if they have a res judicata or collateral estoppel effect in a subsequent action. Kilroy v. State of California (2004) 119 Cal.App.4th 140, 148. A finding in a previous action cannot be used in a subsequent action unless an identical issue is involved in the subsequent action. Diocese of San Joaquin v. Gunner (2016) 246 Cal.App.4th 254, 266.

Defendants request a jury instruction regarding the verdict in SC123486, arguing the verdict is res judicata as to title and ownership. Motion at pgs. 6-8. Plaintiff argues the prior judgment is irrelevant since the instant case relates to construction defects, which were not litigated in the prior matter, and the proposed instruction would confuse the jury.

To the extent identical issues are raised in this case and SC123486, the prior verdict is admissible. However, to the extent the issues are not identical or not relevant, the verdict is inadmissible. Certain issues, such as ownership, were litigated and are res judicata here. Certain other issues, such as alleged misrepresentations made by the parties, do not seem to be relevant in this construction defect matter. It is proper to give instructions about findings that are: (1) identical to those in the prior case, (2) actually litigated in the prior case, and (3) material to the issues raised in this case.

The parties should be prepared to discuss these issues at oral argument.

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