Judge: Loren G. Freestone, Case: 37-2020-00016052-CU-WT-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 07, 2023

09/08/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Wrongful Termination Motion Hearing (Civil) 37-2020-00016052-CU-WT-CTL REKAZADA VS WHOLE-MARKET GROCERY LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendants Whole-Market Grocery LLC and Javid Javdani's motion to tax the May 9, 2023 and May 16, 2023 memoranda of costs after judgment is DENIED.

Defendants' motion for relief for failing to timely challenge the December 15, 2022 and February 17, 2023 memoranda of costs after judgment is DENIED.

Defendants Failed To Timely Challenge Any Of The Four Cost Memoranda 'Before the judgment is fully satisfied but not later than two years after the costs have been incurred, the judgment creditor claiming costs under this section shall file a memorandum of costs with the court clerk and serve a copy on the judgment debtor. Service shall be made be made personally or by mail.' (Code Civ. Proc., § 685.070, subd. (b).) Service must be on the judgment debtor instead of the attorney for the judgment debtor, unless the judgment debtor has filed and served a written request to the contrary. (Code Civ. Proc., § 684.020, subds. (a)–(b).) Service shall be sent to the judgment debtor's current mailing address if know or, if unknown, at the address last given by the judgment debtor on any paper filed in the proceeding and served on the party making service. (Id. at § 684.120, subd. (a)(2.) 'This ensures that the debtor receives actual notice-e.g., where debtor's counsel has not been paid or no longer represents the debtor.' (Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter Group 2023) ¶ 6:106.) 'Within 10 days after the memorandum of costs is served on the judgment debtor, the judgment debtor may apply to the court on noticed motion to have the costs taxed by the court.' (Code Civ. Proc., § 685.070, subd. (c).) A judgment debtor has 15 days if the memorandum is served by mail. (Code Civ.

Proc., § 685.070, subd. (f); see also id. at § 684.120, subd. (b)(1).).) If a motion to tax is not timely filed, 'the costs claimed in the memorandum are allowed.' (Id. at § 685.070, subd. (d).) 'There are no exceptions to this rule, and the language of subdivision (d) is mandatory.' (Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125, 146–147; accord Briggs v. Elliorr (2023) 92 Cal.App.5th 683, 694–695, 697 ['a court has a 'mandatory' duty to allow such costs where, as here, the judgment debtor does not move to tax costs in a timely manner'].) Here, the four memoranda were served on December 15, 2022, February 17, 2023, May 9, 2023, and Calendar No.: Event ID:  TENTATIVE RULINGS

2981045  18 CASE NUMBER: CASE TITLE:  REKAZADA VS WHOLE-MARKET GROCERY LLC [IMAGED]  37-2020-00016052-CU-WT-CTL May 16, 2023. The proofs of service indicate that all the memoranda were properly served by mail and sent directly to both Javdani (both individually and on behalf of Whole-Mart) and Whole-Mart's registered agent. The addresses utilized were identified as Defendants' last known addresses in their prior counsel's motion to be relieved. Service was therefore proper.

The last day to challenge any of the memoranda was May 31, 2023. The motion to tax costs was not filed until June 8, 2023. The motion is therefore untimely.

Defendants Have Not Met Their Burden For Discretionary Relief 'The court may, upon any terms as may be just, relieve a party . . . from a . . . order, or other proceeding taken against him or her though his or her mistake, inadvertence, surprise, or excusable neglect.

Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the . . . order, or proceeding was taken.' (Code Civ. Proc., § 473, subd. (b).) 'The common requirement is that the error must have been excusable. The standard is whether a reasonably prudent person under the same or similar circumstances might have made the same error.' (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007.) 'Inadvertence in the abstract' does not suffice. (Kendall v. Barker (1988) 197 Cal.App.3d 619, 624.) Rather, it is the 'reasons, the causes, and the excuses for the inadvertence' that matter. (Ibid.) '[T]he party requesting such relief must affirmatively show that the situation is one which clearly falls within such category,' and bears the burden of doing so 'by a preponderance of the evidence.' (Ibid.) Self-represented litigants bear that same burden. (See Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 1038; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905–910.) In addition to excusable neglect, the party seeking relief must show diligence in seeking relief after the error has been discovered. (Kendall, supra, 197 Cal.App.3d at p. 625.) 'Unexplained delays of more than three months' will 'generally result in a denial of relief. (Ibid.) Provided the requirements are met, section 473 empowers a court to grant relief from an unchallenged memorandum of costs after judgment. (See David S. Karton, A Law Corp. v. Dougherty (2009) 171 Cal.App.4th 133, 148–149.) In Dougherty, for example, it was undisputed that the judgment creditor never served the judgment debtor with the memorandum. As a result, the award of costs was a 'surprise' for purposes of section 473. (Ibid.) Here, however, unlike Dougherty, the uncontroverted evidence is that Plaintiff did properly serve Defendants with the memoranda. This raises a presumption that the memoranda were in fact received.

(See Evid. Code, § 641; see also Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421 [presumption disappears when met with contradictory evidence, at which the trier of fact must weigh the denial of receipt against the inference of receipt].) The only evidence of an excuse is set forth in the Declaration of Javid Javdani, which states: 'After my January 25, 2023 wire payment, I believed the Judgment was paid in full and the case was over. I was never informed of any additional costs being requested by Plaintiff, or that any more money was added to the Judgment, until February 17, 2023, when I was informed by my bank that $4,704.70 was taken from the Company's bank account in a bank levy.' Noticeably absent is any explanation as to reason why Javdani was 'never informed,' despite being properly served. (See People ex rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659, 663, citing Lint v. Chisholm (1981) 121 Cal.App.3d 615, 620 ['a claim of lost mail is not grounds for automatic relief' under section 473]; see also Westervelt v. Robertson (1981) 122 Cal.App.3d Supp. 1, 8 [failure of self-represented litigant to provide notice of new address 'does not enable him to claim improper notice'].) Calendar No.: Event ID:  TENTATIVE RULINGS

2981045  18 CASE NUMBER: CASE TITLE:  REKAZADA VS WHOLE-MARKET GROCERY LLC [IMAGED]  37-2020-00016052-CU-WT-CTL As noted above, the memoranda were sent directly to Javdani and to Whole-Market's registered agent, as required by the Enforcement of Judgments Law specifically to ensure actual notice. Defendants do not dispute that the addresses where the memoranda were sent are current. Javdani does not identify any issues with his mail service or his ability to check the mail, nor does he identify any reason why Whole-Market's registered agent would not inform him about the memoranda. There is no declaration from the registered agent denying receipt of the memoranda. A courtesy copy of the initial memorandum was also sent to Defendants' 'putative counsel,' who indicated that he forwarded a copy to Defendants. And having been previously served with an acknowledgment of satisfaction of judgment – checked 'partial' (which Javdani does not deny receiving), it is unclear why he would believe the judgment was paid in full when he never received a subsequent acknowledgment of satisfaction of judgment – checked 'full.' The court is not persuaded that Defendants failed to receive the memoranda, nor can it say, on this record, that the failure to timely challenge the memoranda was excusable.

Moreover, according to Javdani, he learned about the additional costs on February 17, 2023 (the same day the second memorandum was served). Yet, Javdani did not substitute in new counsel until June 8, 2023 and did not move for relief until June 13, 2023. No explanation is given for this almost 4 month delay. As such, Defendants have also failed to meet their burden of demonstrating diligence.

Conclusion The court expresses no opinion on the propriety of the amounts claimed in the cost memoranda.

Defendants failed to timely challenge any of the four memoranda, and they have failed to sufficiently demonstrate excusable neglect and reasonable diligence. Accordingly, the motion to tax and the motion for relief are denied.

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