Judge: Michael P. Linfield, Case: 21STCV19462, Date: 2023-03-09 Tentative Ruling

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Case Number: 21STCV19462    Hearing Date: March 9, 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 Second Motion to Tax Costs is GRANTED in part. The Motion is GRANTED regarding accrued interest. The Motion is DENIED regarding attorney’s fees and costs for the application and order for appearance and examination.  The Court taxes $1,084.74 in accrued interest and allows costs of $7,134.16 for attorney's fees and ORAP costs.

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

        On March 1, 2023, the Court granted the First Motion to Tax Costs.

        On March 2, 2023, Plaintiff filed its Reply. Plaintiff concurrently filed its Proof of Service.

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.      The Parties’ Arguments

Judgment Debtor moves the Court to tax the following costs: (1) $196.66 for an application and order for appearance and examination of Judgment Debtor; (2) $6,937.50 in attorney’s fees; and (3) $1,084.74 in accrued interest. (Second Motion to Tax Costs, p. 4:7–27.) 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. 5:2–3, 5:19–20, 6:1–2.)

Judgment Creditor opposes the striking of accrued interest, arguing: (1) that the Second Motion to Tax Costs is untimely; and (2) that the costs claimed in the Memorandum of Costs dated December 12, 2022 were reasonable and necessary. (Opposition, pp. 3:3, 3:18–19.)

Judgment Debtor reiterates its arguments in its Reply, with the additional argument that the Second Motion to Tax Costs is timely. (Reply, p. 2:7.)

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 12, 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 12, 2022 was to be filed by December 27, 2022. Judgment Debtor’s Second Motion to Tax Costs was filed on January 3, 2023. The Court finds that Judgment Debtor did not timely file its Second Motion to Tax Costs.

Thus, the Court does not reach the merits of Judgment Debtor’s Second Motion to Tax Costs.

The Court DENIES the Second Motion to Tax Costs regarding the costs for attorney’s fees and for the application and order for appearance and examination, which are respectively allowed pursuant to Code of Civil Procedure sections 685.040 and 708.110, et seq.

However, the Court previously granted the First Motion to Tax Costs regarding accrued interest for multiple reasons, including: (1) that such interest is not recoverable as a cost pursuant to statute; (2) Judgment Creditor already pursued the appropriate procedural means of recovery for interest by issuing Writs of Execution; and (3) Judgment Creditor did not really contest the striking of the accrued interest. (Minute Order dated March 1, 2023, p. 7.) The same reasoning applies here.

The Court GRANTS the Second Motion to Tax Costs regarding accrued interest.

Therefore, the Court taxes $1,084.74 in accrued interest, and allows costs of $7,134.16 for attorney's fees and ORAP costs.

III.     Conclusion

Judgment Debtor’s Second Motion to Tax Costs is GRANTED in part. The Motion is GRANTED regarding accrued interest. The Motion is DENIED regarding attorney’s fees and costs for the application and order for appearance and examination.