Judge: Melvin D. Sandvig, Case: 19CHCV00604, Date: 2023-05-16 Tentative Ruling
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Case Number: 19CHCV00604 Hearing Date: May 16, 2023 Dept: F47
Dept. F-47
Date: 5/16/23
Case #19CHCV00604
MOTION TO STRIKE
AND/OR TAX COSTS
Motion filed on 2/6/23. Notice of Errata filed on 2/7/23.
MOVING PARTY: Plaintiff Andrew Dow
RESPONDING PARTY: Defendants Melvin
James Burrell, Regal Services Group and Capital Executive Realty, Inc.
NOTICE: ok
RELIEF REQUESTED: An order striking and/or
taxing costs claimed by Defendants Melvin James Burrell, Regal Services Group
and Capital Executive Realty, Inc. pursuant to CRC 3.1700. Specifically, Plaintiff seeks to strike
and/or tax the following items in Defendants’ Memorandum of Costs: (1) Attachment
5(d) in the amount of $609.59 and motion for sanctions against Crystal Lyons
for $80.00; (2) Item 1(c) for motion for sanctions against Crystal Lyons; and
Item 8(a) for $152.00.
RULING: The motion is denied.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This is a real estate disclosure case. Plaintiff Andrew Dow (Plaintiff) is the
purchaser and Defendants Melvin James Burrell, Regal Services Group and Capital
Executive Realty, Inc. (collectively, Defendants) are the real estate
broker/agent and related businesses. The
First Amended Complaint contained causes of action for: (1) Breach of Written
Agreement, (2) Negligence – Breach of Non-Fiduciary Duties, (3) Breach of
Fiduciary Duties by Escrow Company, (4) Fraudulent Misrepresentation and
Concealment and (5) Unfair and Deceptive Business Practices (Business &
Professions Code 17200, 17203). On
1/3/23, the Court entered Judgment in favor of Defendants.
On 1/17/23, Defendants filed and served, by next day
Federal Express, a Memorandum of Costs setting forth costs in the amount of
$13,344.35. On 2/6/23, Plaintiff filed
and served the original Motion to Strike
and/or Tax Costs. On 2/7/23, Plaintiff
filed and served a Notice of Errata regarding the Motion to Strike and/or Tax
Costs. On 2/9/23, Defendants filed and
served a Motion for Attorney Fees which was granted, in part, and denied, in
part, on 3/28/23. (See 3/28/23
Minute Order). On 3/28/23, Defendants’ request to add costs to the
Judgment at that time was denied without prejudice and Defendants’ request to
advance the hearing on the instant motion to that date was denied. (Id., p.5). The Court ordered the parties to meet and
confer regarding a stipulation on resolution of the instant motion and if they
reached a resolution, the parties were permitted to file a stipulation and
order. Id. No stipulation and order have been
filed. Rather, on 4/3/23, Defendants
filed and served an opposition to the instant motion. No reply to the opposition has been
filed.
ANALYSIS
CRC 3.1700(b) provides, in relevant part:
“(1) Striking and taxing
costs
Any notice of motion to strike or
to tax costs must be served and filed 15 days after service of the cost
memorandum. If the cost memorandum was served by mail, the period is extended
as provided in Code
of Civil Procedure section 1013. If the cost
memorandum was served electronically, the period is extended as provided
in Code
of Civil Procedure section 1010.6(a)(4).
. .
.
(3) Extensions of time
The party claiming costs and the
party contesting costs may agree to extend the time for serving and filing the
cost memorandum and a motion to strike or tax costs. This agreement must be
confirmed in writing, specify the extended date for service, and be filed with
the clerk. In the absence of an agreement, the court may extend the times for
serving and filing the cost memorandum or the notice of motion to strike or tax
costs for a period not to exceed 30 days.
(4) Entry of costs
After the time has passed for a
motion to strike or tax costs or for determination of that motion, the clerk
must immediately enter the costs on the judgment.”
Because Defendants’ Memorandum of Costs was served by next
day delivery, the 15-day deadline to file and serve a Motion to Strike and/or
Tax such costs was extended by two court days.
See CCP 1013(c). There is
no evidence of a written agreement between the parties to extend the deadline
for the filing of the motion to strike and/or tax. Nor did Plaintiff seek permission from the
Court to file a late motion to strike/tax costs. Based on the 1/17/23 service of the
Memorandum of Costs by Federal Express, next day delivery, Plaintiff had until
2/3/23 (15 days + 2 court days) to file and serve the instant motion. The original motion was not filed and served
until 2/6/23, with the notice of errata regarding the motion being filed and
served on 2/7/23.
As such, the motion to strike and/or tax costs is
untimely.
CONCLUSION
Based on the foregoing, the motion is denied.