Judge: Craig Griffin, Case: Young vs. Byars, Date: 2023-08-07 Tentative Ruling

A)  Motion to Strike Filed 02/21/23 – ROA #524

Plaintiffs William Young and Jennifer Young’s (“Plaintiffs”) Motion to Strike is DENIED.

Plaintiffs’ motion seeks to strike a Notice of Entry of Judgment (ROA #512), and any Writs of Executions, and Notice of Liens based thereon.  The motion is made pursuant to Civ. Proc. Code §§ 435.5(a) and 436.  But those code sections pertain only to a demurrer, answer, complaint, or cross-complaint.  (Civ. Proc. Code § 435(a).)  The documents sought to be struck are not one of the types of pleadings that may be struck by Civ. Proc. Code §§ 435.5(a) or 436. 

Further, nothing in Civ. Proc. Code § 664.5 requires that a notice of entry of judgment be signed. It only states that a “judgment” includes a judgment, decree, OR signed order. Plaintiffs’ motion cites to no case that supports the need for a notice of entry of judgment to be signed by a judge to be valid.  While Plaintiffs’ reply cites to Upchurch v. Upchurch (2006) 367 S.C. 16 and Bowman v. Richland Mem'l Hosp. (1999) 335 S.C. 88, these are rulings from South Carolina, which are not applicable to California cases.

As Plaintiffs have provided no valid legal basis for the requested relief, the motion is DENIED.

B)  Motion to Strike Filed 03/13/23 – ROA #565; and Motion to Strike Filed 03/29/26 – ROA #606

Plaintiffs Motion to Strike filed 03/13/23 and Motion to Strike filed 03/29/26 are both DENIED.

With these two motions Plaintiffs request the court strike or tax two Memorandums of Costs After Judgment filed by COCO (ROA #564 – 03/09/23 Memo, and #591 – 03/20/23 Memo). 

For the 03/09/23 motion, Plaintiffs cite to CRC Rule 3.1700 and Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal. App. 3d 924, which relate to a party seeking trial costs (or costs of default), which is not the basis for COCO’s memorandums.  Plaintiffs also cite to Civ. Proc. Code § 644.5, which does not exist.  As no legal basis has been provided for the 03/29/23 motion, it must be DENIED.

The only statute or case the 03/29/23 motion cites to is Civ. Proc. Code § 644.5, which again does not exist.  As no legal basis has been provided for the 03/29/23 motion, it must be DENIED.

Even if the court were to take these motions to tax costs pursuant to Civ. Proc. Code § 685.070 (which again was not cited by Plaintiffs), as COCO notes, the motions were not timely filed within 10-days of service of the memorandums as required under Civ. Proc. Code § 685.070(c).  The memorandum filed on 03/09/23 was served on Plaintiffs via mail on 02/23/23.  (ROA #564.)  Plaintiffs did not file their 03/13/23 motion until 18-days after the memorandum had been served. 

The memorandum filed on 03/20/23 was served on Plaintiffs via mail on 03/07/23.  Plaintiff did not filed their 03/29/23 motion until 22-days after the memorandum had been served.  Both of the motions are therefore untimely. 

The motions are also DENIED as untimely.

Plaintiffs to give notice.