Electronically Filed by Superior Court of California, County of Orange, 03/18/2022 05:19:00 PM.

30-2021-01223399-CU-OE-CXC - ROA # 37 - DAVID H. YAMASAKI, Clerk of the Court By efilinguser, Deputy Clerk.

1 SANDEEP J. SHAH (SBN: 210449)

TIARA GOSE-HARDY (SBN: 323823)
2 SHAH LAW GROUP
650 Town Center Drive, Suite 1400
3 Costa Mesa, CA 92626
Telephone: (714) 982-3754
4 Facsimile: (657) 214-3754
Email: [email protected]
5
GREGORY P. WONG (SBN: 204502)
6 BARKHORDARIAN LAW FIRM, PLC
6047 Bristol Parkway, Second Floor
7 Culver City, CA 90230
Telephone: (323) 450-2777
8 Facsimile: (310) 215-3416
Email: [email protected]
9
Attorneys for Plaintiffs
10 Dani Smith and Arianna Pistilli, on behalf of
themselves and all others similarly situated
11

12 SUPERIOR COURT OF THE STATE OF CALIFORNIA

13 FOR THE COUNTY OF ORANGE

14 CIVIL COMPLEX CENTER

15
DANI SMITH and ARIANNA PISTILLI, on CASE NO.: 30-2021-01223399
16 behalf of themselves and all others similarly
situated, Assigned for all purposes to:
17 Hon. Peter Wilson (Dept. CX102)
Plaintiffs,
18 MEMORANDUM OF POINTS AND
vs. AUTHORITIES IN SUPPORT OF
19 MOTION FOR REIMBURSEMENT OF
DA COSTA STRICKLEN INVESTMENTS, EXPENSES FROM DEFENDANTS DA
20 INC., a California Corporation; MICHAEL A. COSTA STRICKLEN INVESTMENTS,
STRICKLEN, an individual; RAUL DA INC. AND MICHAEL STRICKLEN
21 COSTA, an individual; and DOES 1 through
100, inclusive, Hearing Date: May 19, 2022
22 Time: 2:00 p.m.
Defendants. Dept.: CX102
23
Complaint Filed: September 28, 2021
24 Trial Date: Not Yet Set

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MPA ISO MOTION FOR REIMBURSEMENT OF EXPENSES FROM DEFENDANTS
DA COSTA STRICKLEN INVESTMENTS, INC. AND MICHAEL STRICKLEN
 1 Plaintiffs Dani Smith and Arianna Pistilli (hereafter collectively “Plaintiffs”), respectfully

2 submit the following Memorandum of Points and Authorities in support of their Motion for

3 Reimbursement from Defendant Da Costa Stricklen Investments (hereinafter “Defendant DCSI”),

4 Inc. and Defendant Michael Stricklen (hereinafter “Defendant Stricklen”) (hereinafter collectively

5 “Defendants”) (hereinafter “Motion”):

6 MEMORANDUM OF POINTS AND AUTHORITIES

7 I. STATEMENT OF FACTS

8 On September 28, 2021, Plaintiffs filed a Class Action Complaint in this matter against

9 Defendants alleging various wage and hour claims. See Declaration of Sandeep J. Shah (hereinafter
10 “Shah Decl.”) filed concurrently herewith, ¶ 2; see also Plaintiffs’ Complaint.

11 In an effort to avoid incurring unnecessary costs for service of the Summons and Complaint,

12 pursuant to California Code of Civil Procedure section 415.30, on or about September 29, 2021

13 counsel for Plaintiffs sent via U.S. Certified Mail to Defendant DCSI, Defendant Stricklen, and

14 Defendant Raul Da Costa, as well as to counsel for Defendants, R. Jeffrey Evans (including a

15 courtesy copy via electronic mail to Mr. Evans), a letter enclosing a copy of the Summons and

16 Complaint, along with 2 original copies of the Notices and Acknowledgment of Receipt–Civil for

17 each separate Defendant to sign, and a postage-paid, self-addressed stamped return envelope. Shah

18 Decl., ¶ 3 and Exhibit “A” attached thereto. In their September 29, 2021 letter, counsel for Plaintiffs

19 requested that Defendants sign and return one of the original executed copies of the Notice and
20 Acknowledgment of Receipt–Civil to Plaintiffs’ counsel’s office in the enclosed postage-paid, self-

21 addressed stamped return envelope within 20 days from the date of the letter, or on or before

22 October 19, 2021. Id.

23 On October 4, 2021, counsel for Plaintiffs received an email from counsel for Defendants

24 advising that he had received the courtesy e-mail of the Summons and Complaint, along with the

25 copies of the Notices and Acknowledgment of Receipt-Civil for Defendants, and advised that he

26 only represents Defendants DCSI and Stricklen, but did not represent Defendant Raul DaCosta.

27 However, Defendants’ counsel did not advise if he would be executing and returning the Notices

28 and Acknowledgment of Receipt-Civil on behalf of Defendants DCSI and Stricklen (whom he

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MPA ISO MOTION FOR REIMBURSEMENT OF EXPENSES FROM DEFENDANTS
DA COSTA STRICKLEN INVESTMENTS, INC. AND MICHAEL STRICKLEN
 1 acknowledged that he represented for this matter). Shah Decl., ¶ 4 and Exhibit “B” attached thereto.

2 Plaintiffs’ counsel received confirmation that the certified mail envelope containing copies of the

3 Summons and Complaint and Notices and Acknowledgment of Receipt-Civil were received by

4 Defendants on October 4, 2021 at 10:15 a.m. Id.

5 On October 6, 2021, counsel for Plaintiffs responded to Defendants’ counsel and once again

6 requested that either Defendants’ counsel or Defendants themselves execute the Notices and

7 Acknowledgment of Receipt-Civil so as to reduce the costs of service. Shah Decl., ¶ 5 and Exhibit

8 “C” attached thereto.

9 On October 27, 2021, having not received any response from Defendants’ counsel with
10 regard to the execution of the Notices and Acknowledgment of Receipt-Civil, counsel for Plaintiffs
11 sent an email to Defendants’ counsel once again requesting that either Defense counsel or
12 Defendants sign and return the Notices and Acknowledgment of Receipt-Civil on or before October
13 29, 2021. Shah Decl., ¶ 6 and Exhibit “D” attached thereto.
14 On October 28, 2021, Defendants’ counsel responded to Plaintiffs’ counsel’s October 27,
15 2021 email regarding execution of the Notices and Acknowledgment of Receipt-Civil.
16 Unfortunately, however, Defendants’ counsel refused to advise if he or Defendants would sign and
17 return the Notices and Acknowledgment of Receipt-Civil as requested. Shah Decl., ¶ 7 and Exhibit
18 “E” attached thereto. Later that same day, counsel for Plaintiffs responded via e-mail and once
19 again requested Defendants’ counsel or Defendants to sign and return the Notices and
20 Acknowledgment of Receipt-Civil on or before October 29, 2021. Id.

21 On or about November 3 or 4, 2021, counsel for both parties engaged in a telephone

22 conference to discuss the case. Shah Decl., ¶ 8. During that telephone call, counsel for Plaintiffs

23 once again reiterated their request for Defendants’ counsel or Defendants to sign and return the

24 Notices and Acknowledgment of Receipt-Civil. Id. Unfortunately, both Defendants’ counsel and

25 Defendant Da Costa (who was also on the call) refused to agree to do so. Id.

26 Thereafter, on November 9, 2021, counsel for Plaintiffs sent one final e-mail to once again

27 request that Defendants’ counsel or Defendants sign and return the Notices and Acknowledgment

28 of Receipt-Civil on or before November 12, 2021 so as to avoid the unnecessary costs of personal
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MPA ISO MOTION FOR REIMBURSEMENT OF EXPENSES FROM DEFENDANTS
DA COSTA STRICKLEN INVESTMENTS, INC. AND MICHAEL STRICKLEN
 1 service of the Summons and Complaint. Shah Decl., ¶ 9 and Exhibit “F” attached thereto.

2 Unfortunately, however, neither Defendants’ counsel nor Defendants returned the executed

3 Notices and Acknowledgment of Receipt–Civil for either of the Defendants. Shah Decl., ¶ 10. As

4 such, as a result of Defendants’ failure and refusal to accept service of the Summons and Complaint,

5 Plaintiffs were forced to engage an attorney service to effectuate personal service of the Summons

6 and Complaint on Defendants, and Plaintiffs were forced to incur the costs of the same. Id.

7 Specifically, on or about November 15, 2021, counsel for Plaintiffs retained the services of First

8 Legal Support Services (hereinafter “First Legal”), a provider of attorney services, to have the

9 Summons and Complaint personally served on Defendants. Shah Decl., ¶ 11.

10 First Legal was able to effectuate personal service on Defendants on November 23, 2021.
11 Shah Decl., ¶ 12 and Exhibit “G” attached thereto. The fee charged for service of the Summons
12 and Complaint was $121.90 for service on Defendant DCSI and $63.80 for service on Defendant
13 Stricklen for a total cost of $185.70. Id.
14 Thereafter, on December 21, 2021, Defendants’ counsel, R. Jeffrey Evans, sent an e-mail

15 to Plaintiffs’ counsel advising that he will be representing Defendants DCSI and Stricklen and

16 requested an extension of time to January 23, 2022 to file an Answer to the Complaint on behalf of

17 both of the Defendants that were personally served. On December 22, 2021, counsel for Plaintiffs

18 responded to Defendants’ counsel granting his request for extension. Shah Decl., ¶ 13 and Exhibit

19 “H” attached thereto.

20 The following day, December 23, 2021, Defendants’ counsel sent an email to Plaintiffs’

21 counsel forwarding a copy of Defendants’ Answer to the Complaint which Defendants’ counsel

22 stated he had filed with the Court that same day. Shah Decl., ¶ 14 and Exhibit “I” attached thereto.

23 With the purported appearance of defense counsel, on January 3, 2022, counsel for Plaintiff

24 sent via e-mail to Defendants’ counsel a meet and confer letter requesting reimbursement for the

25 expenses incurred for the personal service of the Summons and Complaint on Defendants. Shah

26 Decl., ¶ 15 and Exhibit “J” attached hereto. Plaintiffs’ expenses for copies, postage, and process

27 server fees for the service of the Summons and Complaint on Defendants amounted to $207.75.

28 On January 12, 2022, Defendants’ counsel acknowledged receipt of the meet and confer
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MPA ISO MOTION FOR REIMBURSEMENT OF EXPENSES FROM DEFENDANTS
DA COSTA STRICKLEN INVESTMENTS, INC. AND MICHAEL STRICKLEN
 1 letter and requested “proof of payment to the process server” for the service of the Summons and

2 Complaint on Defendants. Shah Decl., ¶ 16 and Exhibit “K” attached hereto. While “proof of

3 payment” is not required, counsel for Plaintiffs nevertheless sent to Defendants’ counsel copies of

4 the First Legal Attorney Service invoices received for the service of the Summons and Complaint

5 on Defendants. Id.

6 Thereafter, Defendants’ counsel once again demanded that Plaintiffs’ counsel send him

7 “proof of payment” to the process server. Shah Decl., ¶ 17 and Exhibit “L” attached hereto. Again,

8 while “proof of payment” is not required, counsel for Plaintiffs forwarded to Defendants’ counsel

9 an email from First Legal confirming that payment on both invoices for the service of the Summons
10 and Complaint on Defendants had, in fact, been paid in full. Id.
11 On January 13, 2022, Defendants’ counsel advised Plaintiffs’ counsel that Defendants had

12 agreed to reimburse Plaintiffs in the amount of $185.70 for the costs of service. Shah Decl., ¶ 18

13 and Exhibit “M” attached hereto. Thereafter, Plaintiffs’ counsel advised Defendants’ counsel that

14 the full amount of the requested reimbursement was $207.751 and requested that the full amount be

15 sent forthwith. Id. Subsequently, Defendants’ counsel then demanded that Plaintiffs’ counsel send

16 him “proof of the other incurred costs” (e.g., copies and postage costs). Id. Plaintiffs’ counsel

17 advised Defendants’ counsel that he had the envelope that the Complaint was mailed to Defendants

18 containing the Complaint and Notices and Acknowledgment of Receipt-Civil, and thus he could

19 easily verify the postage cost, and that he could also count the number of pages in the packet sent
20 to him to verify the total number of copies. Shah Decl., ¶ 19 and Exhibit “N” attached hereto.

21 Plaintiffs’ counsel advised Defendants’ counsel that Plaintiffs’ counsel charges $0.25 per page for

22 copies. Id.

23 Defendants’ counsel then demanded a copy of Plaintiffs’ Attorney-Client Retainer

24 Agreement to purportedly verify the copy costs that Plaintiffs’ counsel charges. Shah Decl., ¶ 20

25 and Exhibit “O” attached hereto. Plaintiffs’ counsel responded to Defendants’ counsel advising

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Plaintiffs’ counsel subsequently discovered that there was a typographical error in the postage amount. The correct
27 postage amount was $9.36, not $10.30, and thus the total reimbursement amount requested was $206.81 instead of
$207.75. Plaintiffs’ counsel notified Defendants’ counsel of the error on January 25, 2022 and once requested
28 Defendants to pay the full updated reimbursement amount. See Shah Decl., ¶ 25 and Exhibit “Q” attached hereto.
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MPA ISO MOTION FOR REIMBURSEMENT OF EXPENSES FROM DEFENDANTS
DA COSTA STRICKLEN INVESTMENTS, INC. AND MICHAEL STRICKLEN
 1 that the Attorney-Client Retainer Agreement was privileged and would not be produced, but

2 Plaintiffs’ counsel agreed to provide an excerpt from the Attorney-Client Retainer Agreement that

3 outlined the “Costs and Expenses” charged by Plaintiffs’ counsel for photocopying. Id.

4 Subsequently, on January 17, 2022, Defendants’ counsel advised that Defendants will no

5 longer be providing payment for the full, or ANY, amount of the reimbursement request and that

6 Plaintiffs should file their Motion for Reimbursement. Shah Decl., ¶ 21 and Exhibit “P” attached

7 hereto. As a result of Defendants’ failure and refusal to provide the full amount of reimbursement

8 for the costs incurred by Plaintiffs, Plaintiffs were forced to file the instant Motion.

9 To date, Plaintiffs have incurred the following costs amounting to $206.81 in relation to

10 service of the Summons and Complaint on Defendants as follows:

11 1. Attorney service costs to Plaintiff: $185.70;

12 2. Photocopy costs of Summons and Complaint, Notices of Acknowledgment, and

13 correspondences to Defendants: $11.75 (47 copies x $0.25/copy); and

14 3. Postage costs for certified mailing of the above-listed documents to Defendants:

15 $9.36. Shah Decl., ¶ 22. See also Exhibit “J.”

16 In addition, Plaintiff has incurred costs for being forced to file this Motion which are also

17 recoverable via this Motion. Specifically, Plaintiffs have incurred the additional following costs in

18 the amount of $203.50 in relation to the filing of this Motion as follows:

19 1. Court Filing Fee for Motion: $60.00;

20 2. Photocopy costs for Motion: $27.50 (110 copies x $0.25/copy);

21 3. Attorney service costs for the filing of the Motion and anticipated Reply papers:

22 $22.00 (2 filings x $11.00/filing). Shah Decl., ¶ 23.2

23 4. Cost for CourtCall for telephonic appearance at Motion hearing: $94.00.

24 Based on the foregoing, Plaintiffs have incurred and are entitled to a reimbursement from

25 Defendants of costs in the amount of $410.31, as a result of Defendants’ failure and refusal to

26 accept service of the Summons and Complaint pursuant to California Code of Civil Procedure

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The Motion filing costs relate to BOTH Defendants. As such, the Motion filing costs can be apportioned 50%-50%
28 to each Defendant if/when the Court grants Plaintiffs’ Motion.
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MPA ISO MOTION FOR REIMBURSEMENT OF EXPENSES FROM DEFENDANTS
DA COSTA STRICKLEN INVESTMENTS, INC. AND MICHAEL STRICKLEN
 1 section 415.30(d). Shah Decl., ¶ 24.

2 Plaintiffs’ counsel subsequently discovered that there was a typographical error in the
3 postage amount. Shah Decl., ¶ 25 and Exhibit “Q” attached hereto. The correct postage amount
4 was $9.36, not $10.30, and thus the total reimbursement amount requested was $206.81 instead of
5 $207.75. Id. Plaintiffs’ counsel notified Defendants’ counsel of the error on January 25, 2022 and
6 once again requested Defendants to pay the full updated reimbursement amount. Id.
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On January 27, 2022, Defendants’ counsel advised that Defendants would not agree to pay
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any amount of the reimbursement. Shah Decl., ¶ 26 and Exhibit “R” attached hereto. As a result,
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Plaintiffs were forced to file this Motion.
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As such, Plaintiffs respectfully request that the Court grant Plaintiffs’ Motion for
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Reimbursement as to Defendants and order Defendants and/or Defendants’ counsel, jointly and
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severally, to reimburse Plaintiffs for the above-listed costs that Plaintiffs were forced to incur.
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II. ARGUMENT
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California Code of Civil Procedure section 415.30(a) states, in pertinent part, “A summons
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may be served by mail as provided in this section. A copy of the summons and of the complaint
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shall be mailed . . . to the person to be served, together with two copies of the notice and
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acknowledgment . . . and a return envelope, postage prepaid, addressed to the sender.”
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In addition, California Code of Civil Procedure section 415.30(d) provides that “If the
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person to whom a copy of the summons and of the complaint are mailed pursuant to this section
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fails to complete and return the acknowledgement form set forth . . . within 20 days from the date
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of such mailing, the party to whom the summons was mailed shall be liable for reasonable expenses
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thereafter incurred in serving or attempting to serve the party by another method permitted by this
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chapter, and except for good cause shown, the court in which the action is pending, upon motion,
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with or without notice, shall award the party such expenses whether or not he is otherwise entitled
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to recover his costs in the action.”
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As such, pursuant to California Code of Civil Procedure section 415.30(d), Defendants are
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each separately liable to Plaintiffs for reimbursement of the expenses that Plaintiffs unnecessarily
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MPA ISO MOTION FOR REIMBURSEMENT OF EXPENSES FROM DEFENDANTS
DA COSTA STRICKLEN INVESTMENTS, INC. AND MICHAEL STRICKLEN
 1 incurred in serving and attempting to serve Defendants. Therefore, Plaintiffs are entitled to an

2 award for reimbursement of such expenses to Plaintiffs from each of Defendants, jointly and

3 severally, in the amount of $410.31.

4 III. CONCLUSION

5 Based on the foregoing, Plaintiffs respectfully request that the Court grant Plaintiffs’

6 Motion for Reimbursement of costs from BOTH Defendants Da Costa Stricklen Investments, Inc.

7 and Stricklen and/or Defendants’ counsel, jointly and severally, in the total amount of $410.31.

8 DATED: March 18, 2022 Respectfully Submitted,

9 SHAH LAW GROUP, P.C.
BARKHORDARIAN LAW FIRM, PLC
10
/s/ Sandeep J. Shah
11 _____________________________
Sandeep J. Shah
12
Attorneys for Plaintiffs
13 Dani Smith and Arianna Pistilli

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MPA ISO MOTION FOR REIMBURSEMENT OF EXPENSES FROM DEFENDANTS
DA COSTA STRICKLEN INVESTMENTS, INC. AND MICHAEL STRICKLEN
 1 PROOF OF SERVICE
(CCP §§ 1013(A) AND 2015.5)
2 State of California,
Case No.: 30-2021-01223399-CU-OE-CXC
3 County of Orange.

4 I am employed in the County of Orange, State of California. I am over the age of 18 and am not a party to the
within action; my business address is 650 Town Center Drive, Suite 1400, Costa Mesa, California 92626.
5
On March 18, 2022, I served the foregoing documents described as:
6
1) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
7 REIMBURSEMENT OF EXPENSES FROM DEFENDANTS DA COSTA STRICKLEN
INVESTMENTS, INC. AND MICHAEL STRICKLEN
8 on the interested parties in this action by placing same in a sealed envelope, as follows:
9 Counsel for Defendants
R. Jeffrey Evans ([email protected])
10 Law Office of R. Jeffrey Evans
P.O. Box 2331
11 Seal Beach, CA 90740

(BY MAIL) – I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States
12 mail in Costa Mesa, California.

13 I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing.
Under that practice, it would be deposited with the U.S. Postal Service on the same day with postage thereon
14 fully prepaid at Costa Mesa, California, in the ordinary course of business. I am fully aware that on motion
of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more
15 than one day after the date of deposit for mailing an affidavit.

16 (BY E-MAIL) – Based on a Court order or an agreement by the parties to accept service by e-mail or electronic
transmission, I caused the documents described above to be sent by e-mail to the persons at the e-mail
addresses listed above. I did not receive, within a reasonable amount of time after transmission, any electronic
17 message or other indication that the transmission was unsuccessful.
18 (BY FACSIMILE) – I caused the above-described document(s) to be transmitted to the offices of the
interested parties at the facsimile number(s) indicated on the attached Service List and the activity report(s)
19 generated by facsimile number (844) 503-8202 indicating on all pages that they were transmitted.

20 (BY PERSONAL SERVICE) – I caused such envelope(s) to be delivered by hand to Defendant.

21 (STATE) – I declare under penalty of perjury under the laws of the State of California that the above is true
and correct.
22 (FEDERAL) – I declare that I am employed in the office of a member of the bar of this court at whose
direction the service was made.
23
/s/ Sandeep J. Shah
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Sandeep J. Shah
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MPA ISO MOTION FOR REIMBURSEMENT OF EXPENSES FROM DEFENDANTS
DA COSTA STRICKLEN INVESTMENTS, INC. AND MICHAEL STRICKLEN