Judge: Michael P. Linfield, Case: 21STCV19462, Date: 2023-03-01 Tentative Ruling

Case Number: 21STCV19462    Hearing Date: March 1, 2023    Dept: 34

SUBJECT:         Motion to Tax Defendant’s Memorandum of Costs

Moving Party:  Judgment Debtor Law Offices of Marc Grossman

Resp. Party:    Judgment Creditor Alexander R. Marmureanu, M.D.

        Judgment Debtor’s First Motion to Tax Costs is GRANTED. Costs are taxed in their entirety to the filing and motion fees, and to the accrued interest. 

BACKGROUND:

On May 24, 2021, Plaintiff Law Offices of Marc Grossman filed its Verified Complaint against Defendant Alexander R. Marmureanu, M.D. on causes of action of fraud, breach of contract, recission, and unfair competition and business practices.

On December 17, 2021, Plaintiff filed its Third Amended Verified Complaint.

On February 22, 2022, the Court sustained without leave to amend Defendant’s Demurrer to Plaintiff’s Third Amended Verified Complaint in its entirety.

On March 4, 2022, the Court entered Judgment of Dismissal in favor of Defendant and against Plaintiff.

On May 20, 2022, the Court granted Defendant’s Motion for Attorney’s Fees in the amount of $19,583.00 in favor of Defendant (now Judgment Creditor) and against Plaintiff (now Judgment Debtor).

On August 24, 2022, Judgment Creditor filed: (1) Memorandum of Costs after Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest; and (2) Execution (Money Judgment).

On December 6, 2022, Judgment Creditor filed: (1) EJ-130, Writ of Execution, on Marc. E. Grossman; (2) EJ-130, Writ of Execution, on Law Offices of Marc Grossman; and (3) MC-012, Memorandum of Costs after Judgment, Acknowledgement of Credit, and Declaration of Accrued Interest, regarding filing and motion fees and accrued interest.

        On December 12, 2022, Judgment Creditor filed MC-012 regarding appearance fees and attorney fees.

        On December 27, 2022, Judgment Debtor filed a Motion to Tax Defendant’s Memorandum of Costs (“First Motion to Tax Costs”). Judgment Debtor concurrently filed: (1) Proposed Order; and (2) Proof of Service.

        On January 3, 2023, Judgment Debtor filed a Motion to Tax Costs Defendant’s Memorandum of Costs for $7,134.16 (“Second Motion to Tax Costs”). Judgment Debtor concurrently filed: (1) Proposed Order; and (2) Proof of Service.

        On February 15, 2023, Judgment Creditor filed his Opposition to the First Motion to Tax Costs.

        On February 24, 2023, Judgment Creditor filed his Opposition to the Second Motion to Tax Costs.

        No replies or other responses have been filed.

ANALYSIS:

I.           Legal Standard

A judgment creditor may claim various costs of enforcing a judgment, such as fees for filing a notice of judgment lien on personal property, certain fees for issuing a writ for the enforcement of the judgment, and certain attorney’s fees. (Code Civ. Proc., 685.070, subd. (a).)

“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 personally or by mail. The memorandum of costs shall be executed under oath by a person who has knowledge of the facts and shall state that to the person’s best knowledge and belief the costs are correct, are reasonable and necessary, and have not been satisfied.” (Code Civ. Proc., § 685.070, subd. (b).)

“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. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. The court shall make an order allowing or disallowing the costs to the extent justified under the circumstances of the case.” (Code Civ. Proc., § 685.070, subd. (c).)

“If no motion to tax costs is made within the time provided in subdivision (c), the costs claimed in the memorandum are allowed.” (Code Civ. Proc., § 685.070, subd. (d).)

“Section 1013, extending the time within which a right may be exercised or an act may be done, applies to this section.” (Code Civ. Proc., § 685.070, subd. (f).)

II.        Discussion

A.      Preliminary Notes

This discussion only pertains to the First Motion to Tax Costs, which will be heard on March 1, 2023. The Second Motion to Tax Costs will be heard on March 9, 2023; the Court has not yet issued its tentative decision as to that Motion.

Further, the terms “accrued interest” and “postjudgment interest” are used interchangeably.

B.      The First Motion to Tax Costs

1.       The Parties’ Arguments

Judgment Debtor moves the Court to tax $788.11 in filing and motion fees and $1,074.00 in accrued interest. (First Motion to Tax Costs, p. 5:24–27.) Judgment Debtor argues: (1) that these costs were not reasonable and therefore not allowable; (2) that without a cost worksheet, reasonableness and necessity cannot be ascertained; and (3) that the costs are grossly inflated and unreasonable. (Id. at pp. 3:23–24, 4:5–6, 4:17–18.)

Judgment Creditor concedes to striking of the $788.11 in filing and motions fees as it is duplicative of costs claimed in the pre-judgment Memorandum of Costs filed on March 18, 2022. (Opposition to First Motion to Tax Costs, p. 1:11–19.) However, Judgment Creditor opposes the striking of accrued interest, arguing: (1) that the First Motion to Tax Costs is untimely; and (2) that there is no basis on which to challenge interest. (Id. at pp. 2:24, 3:19.)

2.       Filing and Motion Fees

As Judgment Creditor has conceded to striking of the filing and motion fees, the Court grants the First Motion to Tax Costs and taxes the filing and motion fees in their entirety.

3.       Accrued Interest

Judgment Creditor filed his Memorandum of Costs for the accrued interest on December 6, 2022. (Memorandum of Costs dated December 6, 2022, Item 3.)

Pursuant to Code of Civil Procedure section 685.070, subdivisions (c), (d), and (f), Judgment Debtor had 10 days after service of the Memorandum of Costs (plus any extensions pursuant to Code of Civil Procedure section 1013) to file a motion to tax costs, otherwise costs claimed would be allowed. The Court notes that this is a different timeline than a motion to tax costs for prejudgment interest, which is governed by California Rules of Court, rule 3.1700, subdivision (b). (Compare with Highland Springs Conference & Training Ctr. v. City of Banning (2019) 42 Cal.App.5th 416, 424–25; see also Code Civ. Proc., § 685.110 (“Nothing in this chapter affects the law relating to prejudgment interest.”).)

Here, the Memorandum of Costs was mailed. (Memorandum of Costs dated December 6, 2022, Proof of Service, Item 3.a.(1)(b).) The place of mailing is from California, and Judgment Debtor’s offices are in California. (Id. at Items 2 and 3.a.(2).) “Service is complete at the time of the deposit, but any period of notice . . . shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California[.]” (Code Civ. Proc., § 1013, subd. (a).) Thus, any motion to tax costs regarding the Memorandum of Costs dated December 6, 2022 was due on December 21, 2022. Judgment Debtor’s First Motion to Tax Costs was filed on December 27, 2022. The Court finds that Judgment Debtor did not timely file its First Motion to Tax Costs.

However, that does not mean Judgment Creditor is entitled to post-judgment interest simply because Judgment Creditor has filed a memorandum of costs. Judgment Creditor has already taken the appropriate action to obtain its post-judgment interest: issuing Writs of Execution. (Code Civ. Proc., § 685.050.) The statutory language makes clear that “interest” is different from “costs,” and interest is not included in the statutory list of costs that can be claimed under either sections 685.070 (when filing a memorandum of costs) or 685.080 (when filing a noticed motion for costs). While this may be different for attorney’s fees, which is included in that list, that issue will have to wait until the Court considers Judgment Debtor’s Second Motion to Tax Costs. (Code Civ. Proc., §§ 685.040, 685.070, subd. (a)(6).)

        Perhaps more importantly, Judgement Creditor does not really contest striking accrued interest from the Memorandum of Costs.  According to the Judgement Creditor, the “accrued interest referenced in the Memorandum. . . is merely informational, and need not be claimed via a Memorandum of Costs.”  (Opposition, p. 3:21-22.)

        Thus, Judgement Creditor’s request for accrued interest in the Memorandum of Costs is superfluous.  While it is true that “[s]uperfluity does not vitiate,” [Civ.Code, § 3537], there is no prejudice to striking this cost item.

The Court GRANTS the First Motion to Tax Costs as to the accrued interest.

III.     Conclusion

        Judgment Debtor’s First Motion to Tax Costs is GRANTED. Costs are taxed in their entirety to the filing and motion fees, and as to the accrued interest.