Judge Marcella O. Mclaughlin, Case 37-2021-00005326-CU-NP-CTL 2024-03-15 Tentative Ruling

Judge: Marcella O. Mclaughlin, Case: 37-2021-00005326-CU-NP-CTL, Date: 2024-03-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 14, 2024

03/15/2024 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2021-00005326-CU-NP-CTL LEE VS CHEUNG [IMAGED] CAUSAL DOCUMENT/DATE FILED: Notice of Motion and Supporting Declarations, 08/21/2023

A. The motion for monetary sanctions filed by defendants Gillien Man Cheung and John Keung Cheng is DENIED.

Evidentiary Objections As an initial matter, the court notes that plaintiff filed thirty (30) pages of evidentiary objections. ROA 320. The court reminds plaintiff that '[w]hen opposing a motion, objecting to every single thing with no display of professional judgment or restraint is an abusive practice.' Cohen v. Kabbalah Centre, Intl.

(2019) 35 Cal.App.5th 13, 21. Nevertheless, the rules on plaintiff's evidentiary objections as follows: -Objections 3-7, 11-13, 17, 19, and 24-25 to the Cheung declaration are sustained.

-Objection 20 to the Cheung declaration is sustained as to the word 'fabricated.' -Objection 22 to the Cheung declaration is sustained as to the phrase 'while defending fabricated claims and falsified evidence.' -Objection 23 to the Cheung declaration is sustained as to the phrase 'even though they had no evidence to prove their false claims against me.' -The remaining objections to the Cheung declaration are overruled.

-Objections 5, 7-9, 15, 19-20, 22, 24, 32, and 35-36 to the Cannistraci declaration are sustained.

-Objections 3 and 4 to the Cannistraci declaration are sustained as to the word 'frivolous.' -Objection 18 to the Cannistraci declaration is sustained as to the phrase '[a]t the direction of Plaintiff's attorney.' -Objection 21 to the Cannistraci declaration is sustained as to the phrase 'without probable cause or evidence to prove the allegations of conversion.' -Objection 23 to the Cannistraci declaration is sustained as to the phrase 'knowing they did not have evidence to prove the allegations in the TAC.' -Objection 26 to the Cannistraci declaration is sustained as to the word 'unauthorized.' -Objection 34 to the Cannistraci declaration is sustained as to the phrase 'and shows Plaintiff and Her Attorneys' (sic) knowingly produced and passed off Tran's Note as authentic, when they knew Tran wrote and produced it after Wing was dead.' -The remaining objections to the Cannistraci declaration are overruled.

The court also rules on plaintiff's objections to defendants' reply evidence (ROA 330) as follows: -Objection 1 to the Cheung declaration is sustained.

Calendar No.: Event ID: TENTATIVE RULINGS

3059426 48 CASE NUMBER: CASE TITLE: LEE VS CHEUNG [IMAGED] 37-2021-00005326-CU-NP-CTL -Objection 3 to the Cannistraci declaration is sustained as to the phrase 'secret transaction.' -The remaining objections to both declarations are overruled.

The Sanctions Request and Counter-Request Turning to the merits, under Code of Civil Procedure section 128.5, a trial court may sanction certain frivolous actions and tactics undertaken in bad faith. CPF Vaseo Associates, LLC v. Gray (2018) 29 Cal.App.5th 997, 1000. '[C]onduct must be both frivolous and in subjective bad faith to support sanctions under section 128.5.' In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 141 fn. 8. Under the statute, 'frivolous' means 'totally and completely without merit or for the sole purpose of harassing an opposing party.' Code Civ. Proc. § 128.5(b)(2). 'Whether an action is frivolous is governed by an objective standard: any reasonable attorney would agree it is totally and completely without merit.' Taeb, 39 Cal.App.5th at 135. 'Bad faith' as used in section 128.5 means an action or tactic undertaken for an improper purpose or motive. This is a subjective inquiry. Id. at 134-35.

In this case, the court is not persuaded that plaintiff or her counsel engaged in conduct that was 'frivolous' or in 'bad faith.' While plaintiff's evidentiary showing at trial may have been weak, her claims were sufficiently viable to survive demurrer and summary judgment. Sanctions should only be imposed if clearly called for, and the court cannot say that the conduct thus far warrants imposition of sanctions.

See Winick Corp. v. County Sanitation Dist. No. 2 (1986) 185 Cal.App.3d 1170, 1177 ('[S]anctions should be used sparingly in the clearest of cases to deter the most egregious conduct.').

Plaintiff's counter-request for sanctions is denied as the court is likewise not persuaded that defendants' sanctions motion was frivolous. Moreover, there is no evidence showing that plaintiff complied with the 'safe-harbor' provisions set forth in Code of Civil Procedure section 128.5(f). See Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 551 ('Failure to comply with the safe harbor provisions 'precludes an award of sanctions.'') (quoting Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 700).

B. Plaintiff's motion to tax the costs claimed by defendants Gillien Man Cheung and John Keung Cheng is GRANTED in part and DENIED in part.

'In ruling upon a motion to tax costs, the trial court's first determination is whether the statute expressly allows the particular item and whether it appears proper on its face.' Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29. 'If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.' Nelson, 72 Cal.App.4th at 131. However, '[w]here costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.' Foothill-De Anza, 158 Cal.App.4th at 29.

Item 8 – Witness Fees The motion to tax witness fees is denied. Parties may not recover expert witness fees as costs 'except when expressly authorized by law.' Code Civ. Proc. § 1033.5(b)(1). Such express authorization exists where, as here, 'an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award[.]' Code Civ. Proc. § 998(c)(1).

In this case, it is undisputed that plaintiff did not accept defendants' section 998 offers and subsequently failed to obtain a more favorable judgment. (Cannistraci Decl., ¶¶ 2-3; Exs. A, B.) Thus, the court, 'in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses...actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.' Code Civ. Proc. § 998(c)(1). The court exercises its discretion to award the full amount of expert witness fees requested in this case.

Plaintiff argues that the expert fees should be stricken because Mintao 'Nathan' Huang nor Brenda Anderson testified at trial. However, '[i]t has been held that recovery of expert witness fees under Code Calendar No.: Event ID: TENTATIVE RULINGS

3059426 48 CASE NUMBER: CASE TITLE: LEE VS CHEUNG [IMAGED] 37-2021-00005326-CU-NP-CTL of Civil Procedure section 998 is not limited to actual time consumed in examination.' Michelson v. Camp (1999) 72 Cal.App.4th 955, 975. Plaintiff has not presented any evidence showing that either expert's services were not reasonably necessary for trial. See Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1115 ('[T]he burden is on the objecting party to present evidence showing the contrary.'); see also Adams v Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486-87, 132 CR3d 434 (plaintiffs failed to meet their burden on their motion to tax costs for defendant's expert witness fees, which were substantial, but not shown to be unreasonable or unnecessary).

Item 12 – Models, Enlargements, and Photocopies of Exhibits The motion to tax models, enlargements, and photocopies of exhibits is granted. 'Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.' Code Civ. Proc. § 1033.5(a)(13). '[C]osts related to unused photocopies of trial exhibits and demonstratives are not categorically recoverable under section 1033.5(a)(13), but they may still be awarded in the trial court's discretion pursuant to section 1033.5(c)(4).' Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 657.

Plaintiff argues that costs for the shipping and delivery of exhibit binders ($1,524.17) are not allowable under section 1033.5(a)(13). The court agrees. Moreover, defendants have failed to submit sufficient evidence showing that the shipping and delivery costs were reasonably necessary to the conduct of the litigation and reasonable in amount. See Foothill-De Anza, 158 Cal.App.4th at 29. The court therefore declines to exercise its discretion to award the requested costs. Accordingly, costs for models, enlargements, and photocopies of exhibits are recoverable in the amount of $815.60.

Item 13 – Interpreter Fees The motion to tax interpreter fees is granted. Defendants state that the interpreter fees they seek to recover ($397.50) were incurred in Case No. 2021-28515. (Cannistraci Decl., ¶ 20.) However, 'costs are allowable only in the action in which the costs are incurred.' In re Bauer's Estate (1943) 59 Cal.App.2d 161, 163. Thus, interpreter fees are recoverable in the amount of $780.00.

Item 16 – 'Other' Costs The motion to tax 'other' costs is denied. 'The only travel expenses authorized by section 1033.5 are those to attend depositions.' Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775. As such, whether to award expenses for non-deposition travel is a matter of court discretion. Code Civ.

Proc. § 1033.5(c)(4). The court finds that defense counsel's travel expenses to attend trial were reasonably necessary to the conduct of the litigation given that counsel is based out of Roseville, California. The costs ($467.99) are also reasonable in amount.

Conclusion In light of the foregoing, the court finds that defendants Cheung and Cheng are entitled to recover a total of $15,595.25 in costs as follows: Item 1: $1,637.57 Item 2: $0 Item 3: $0 Item 4: $8,894.09 Item 5: $0 Item 6: $0 Item 7: $0 Item 8: $3,000.00 Item 9: $0 Calendar No.: Event ID: TENTATIVE RULINGS

3059426 48 CASE NUMBER: CASE TITLE: LEE VS CHEUNG [IMAGED] 37-2021-00005326-CU-NP-CTL Item 10: $0 Item 11: $0 Item 12: $815.60 Item 13: $780.00 Item 14: $0 Item 15: $0 Item 16: $467.99 In addition, because plaintiff did not file a motion to tax the costs claimed by defendant Tiet Lam (ROA 298), the court awards costs to Lam in the amount of $1,779.90. See CRC 3.1700(b)(1).

Accordingly, the clerk is directed to interlineate a cost award of $17,375.15 on page 2, paragraph 6(b), of the Judgment entered on August 22, 2023 (ROA 292).

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