Nellie T. Garcia vs. John Gruss

Reply to Motion

Cal. Super. - 4th Dist.September 26, 2014

BUCHALTER NEMER A Professional Corporation JASON E. GOLDSTEIN (SBN: 207481) 18400 Von Karman Avenue, Suite 800 Irvine, California 92612 Telephone: (949) 760-1121 Fax: (949) 720-0182 Email: jgoldstein@buchalter.com Attorneys for Defendants JOHN GRUSS and LORRAINE C. GRUSS SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER NELLIE T. GARCIA,an individual, Case No. 30-2014-00747574-CU-MC-CIC Plaintiff, DEFENDANTS’ REPLY TO MOTION TO TAX AND STRIKE COSTS; VS. DECLARATION OF JASONE. GOLDSTEIN, ESQ. JOHN GRUSS,an individual; LORRAINE C. GRUSS,an individual; and DOES 1 through 10, Date: December 17, 2015 inclusive, Time: 1:30 p.m. Dept.: C24 Defendants. Reservation No.: 72249708 BN 19668536v] 1 REPLY TO OPPOSITION TO MOTION TO TAX AND STRIKE COSTS E N ~ ~ O N a 8 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION! Plaintiff’s opposition to Defendants’ motion to tax and strike costs is without merit. Defendants’ motion is timely and the memorandum of costs filed on September 21, 2015 must be stricken as ineffectual as it was filed prior to the entry of Judgment. The Judgment entered on October 16, 2015 does not change this result as it states in paragraph 10 that, “Costs will be determined and assessed in accordance with any Memorandum of Costs that may be filed in this action.” (Emphasis added) It did not say, “Costs will be determined and assessed in accordance with any Memorandum of Costs,” that was filed in this action before Judgment was entered. Plaintiff is also not the prevailing party here, or in the alternative, the Court should adjudicate that there is no prevailing party here. Practically speaking, this was a family dispute which required Court intervention to resolve. Neither party left the courtroom a true winner. Accordingly, Defendants” motion must be granted. | II. THIS MOTION IS TIMELY Plaintiff incorrectly contends that Defendants’ motion is untimely because it was filed 22 calendar days after service of the Plaintiff’s memorandum of costs by mail because Cal. R. Ct. 3.1700(b)(1) requires a motion to strike or tax costs to be served within 15 days after service of the Memorandum of Costs, which deadline is extended 5 days per Code of Civil Procedure § 1013(a) by mail. While Plaintiff has correctly cited to the plain language of Cal. R. Ct. 3.1700(b)(1) and Code of Civil Procedure § 1013(a), that is to the extent they reference 15 days and 5 days, respectively, Plaintiff is wrong about Defendants’ motion being untimely. This is because when the last date to perform an act is on a “heliday,” that date is excluded from the timeliness calculation. "All terms defined in the Notice of Motion shall be similarly used herein. BN 19668536v! 2 REPLY TO OPPOSITION TO MOTION TO TAX AND STRIKE COSTS «w o ~ ~ O N n n 9 Code of Civil Procedure § 10, entitled, “Holidays designated,” states that, “Holidays within the meaning of this code are every Sunday and any other days that are specified or provided for as judicial holidays in Section 135.” (Emphasis added) Code of Civil Procedure § 12, entitled, “Computation of Time — Holidays Not Reckoned,” states, “The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, then it is also excluded.” (Emphasis added) Code of Civil Procedure § 12a, entitled, “Determination of Time,” states in pertinent part that, “(a) If the last day for the performance of an act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday. For purposes of this section, “holiday” means all day on Saturdays, all holidays specified in Section 135 and,to the extent provided in Section 12b, all days that by terms of Section 12b are required to be considered as holidays.” (Emphasis added) Code of Civil Procedure § 135, entitled, “Days Designated as Judicial Holidays; Alternative Days,” states in pertinent part that, “Every full day designated as a holiday by Section 6700 of the Government Code . . is a judicial holiday . ..” Government Code § 6700, entitled, “State holidays; memorandum of understanding, states in pertinent part that, “The holidays in this state are: (a) Every Sunday . . . (k) The second Monday in October, known as ‘Columbus Day.”” Here, 20 calendar days after Plaintiff's improper filing of its memorandum of costs was Sunday, October 11, 2015 — a holiday. The next calendar day was Monday, October 12, 2015, which was Columbus Day — a holiday. [Declaration of Jason E. Goldstein, Esq., [1-4] Therefore, the deadline for Defendants to file their motion was extended by law to Tuesday, October 13, 2015 and was timelyfiled. BN 19668536v1 3 REPLY TO OPPOSITION TO MOTION TO TAX AND STRIKE COSTS B W O o o o = ~ O v W h III. THE MEMORANDUM WAS FILED BEFORE JUDGMENT WAS ENTERED AND IS THEREFORE INEFFECTUAL AND MUST BE STRICKEN The Judgment entered on October 16, 2015 states in paragraph 10 that, “Costs will be determined and assessed in accordance with any Memorandum of Costs that may be filed in this action.” It did not say, “Costs will be determined and assessed in accordance with any memorandum of costs,” that wasfiled in this action before Judgment was entered. Accordingly, Plaintiff's memorandum of costs which wasfiled approximately three weeks before Judgment was entered is ineffectual and must be stricken. IV. The primary issue in this case was whether there was an agreement between Plaintiff and Defendants whereby Plaintiff had agreed to purchase a home for the Defendants. That question was answered in the affirmative in paragraph 2 of the Judgment. The remaining issues in the case were deal terms: the purchase price and the time within which the home had to be purchased. Plaintiff denied at all times that there was any agreement between Plaintiff and Defendant. The Judgment establishes that there was such an agreement. Accordingly, the Defendants should be adjudicated the prevailing parties because the existence of an agreement was the primary issue in this case. Without establishing that issue, the deal terms were irrelevant. The Court also has discretion to adjudicate that there is no prevailing party here. Practically speaking, this was a family dispute which required Court intervention to resolve. Neitherparty left the courtroom a true winner. It should also be noted that originally, this case was for Elder Abuse, Fraud and Conversion and was only amended to assert a single claim for Declaratory Relief after the Defendants filed a Demurrer which established, in counsel for Defendants’ opinion, that each of those claims was without merit. BN 196685361 4 REPLY TO OPPOSITION TO MOTION TO TAX AND STRIKE COSTS 1 Defendants ask this Court to either adjudicate that the Defendants are the prevailing 2) parties or that there is no prevailing party. 3) V. CONCLUSION Defendants’ motion was timely. Plaintiff's memorandum of costs was improperly filed before Judgment was entered. Defendants request that this Motion be granted and that the Court adjudicate that the Defendants are the prevailing parties or that there is no prevailing party. DATED: December 10, 2015 BUCHALTER NEMER A Professional Corporation i N O 0 0 O N n t “Wf i 10 JASON E. GOLDSTEIN Attorneys for Defendants 11 JOHN GRUSS and LORRAINE C. GRUSS BN 19668536v] 5 REPLY TO OPPOSITION TO MOTION TO TAX AND STRIKE COSTS 4 5 6 7 8 9 DECLARATION OF JASON E. GOLDSTEIN, ESQ. I, Jason E. Goldstein, declare: 1. [ am an attorney duly authorized and licensed to practice law in the State of California, the State of Florida, all of the United States District Courts located in California and the United States District Courts for the Middle and Southern District of Florida. I am a Shareholder at the law firm of Buchalter Nemer, APC, counsel of record for Defendants John and Lorraine Gruss (jointly termed, “Grusses”). 2. I have personal knowledge of all of the facts contained in this declaration and can competently testify thereto. 3. October 11, 2015 was a Sunday. 4. October 12, 2015, which was a Monday, was Columbus Day. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that I executed this Declaration in Irvine, California, on December 10, 2015. = Vs JASON BE OLDSTEIN, ESQ. \/“J BN 19668536v1 6 REPLY TO OPPOSITION TO MOTION TO TAX AND STRIKE COSTS BUCHALTER ! A Props O o w w ~ ~ O N t b 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PROOF OF SERVICE I am employed in the County of Orange, State of California. Iam over the age of 18 and not a party to the within action. My business address is at BUCHALTER NEMER, A Professional Corporation, 18400 Von Karman Avenue, Suite 800, Irvine, CA 92612-0514. On the date set forth below,I served the foregoing document described as: DEFENDANTS’ REPLY TO MOTION TO TAX AND STRIKE COSTS; DECLARATION OF JASON E. GOLDSTEIN, ESQ. on all other parties and/or their attorney(s) of record to this action by [J electronically serving [1 faxing and/or placing a true copy thereof in a sealed envelope as follows: M.Richardson Lynn, Jr. Telephone: (858)291-8516 M. RICHARDSON LYNN, JR., APC Facsimile: (858) 454-2679 7825 Fay Avenue, Suite 200 Email: mrlynnjr@aol.com La Jolla, California 92037 Attorneysfor PlaintiffNellie Garcia Randall B. Klotz Telephone: (619) 828-5150 STUTZMAN & KLOTZ Email: Randall_Klotz@yahoo.com 7560 University Avenue, Suite B La Mesa, California 91942 Attorneysfor PlaintiffNellie Garcia O BY MAIL [Iam readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service. The address(es) shown above is(are) the same as shown on the envelope. The envelope was placed for deposit in the United States Postal Service at Buchalter Nemerin Irvine, California on December 10, 2015. The envelope was sealed and placed for collection and mailing with first-class prepaid postage on this date following ordinary business practices. Od BY FACSIMILE AND MAIL I caused the above-named document(s) to be sent via facsimile transmission to the law office(s) and facsimile number(s) stated above. The transmission was reported as complete and without error. A copy of the transmission report(s) properly issued by one or more of Buchalter, Nemer’s Xerox 745 WorkCenter facsimile machine(s) [telephone number(s): (949) 720-0182 is(are) made a part of this proof of service pursuant to CRC §2.306. I am readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service. The correspondence will be deposited in an envelope with the United States Postal Service this day in the ordinary course of business for mailing to the address(es) shown above. The envelope was sealed and placed for collection and mailing with the United States Postal Service at Buchalter Nemerin Irvine, California on December 10, 2015 following ordinary business practices. “a BY OVERNIGHT DELIVERY On December 10, 2015, I placed the Federal Express/Overnite Express package for overnight delivery in a box or location regularly maintained by Federal Express/Overnite Express at my office, or I delivered the package to an authorized courier or driver authorized by Federal Express/Overnite Express to receive documents. The package was placed in a sealed envelope or package designated by Federal Express/Overnite Express with delivery fees paid or provided for, addressed to the person(s) on whom it is to be served at the address(es) shown above, as last given by that person on any BN 17339442v1] N O 0 ~ ~ O N i n o b W w N e R R R N B Y B Y D D k e me d ee d p e pe d e d p e N E E EE E E S T E C - ET NE vc a r = 28 ALTER NEMER documentfiled in the cause; otherwise at that party’s place of residence. | BY PERSONAL DELIVERY On December 10, 2015, I placed the above-referenced envelope or package in a box or location regularly maintained at my office for our messenger/courier service or I delivered the envelope or package to a courier or driver authorized by our messenger/courier service to receive documents. The package was placed in a sealed envelope or package designated by our messenger/courier service with delivery fees paid or provided for, addressed to the person(s) on whom it is to be personally served at the address(es) shown above as last given by that person on any documentfiled in the cause. The messenger/courier service was provided with instructions that the envelope or package be personally served on the addressee(s) by same day delivery (C.C.P. §1011). a BY EMAIL On December 10, 2015, I caused the above-referenced document(s) to be sent in electronic PDF format as an attachment to an email addressed to the person(s) on whom such document(s) is/are to be served at the email address(es) shown above,as last given by that person(s) or as obtained from an internet website(s) relating to such person(s), and I did not receive an email response upon sending such email indicating that such email was not delivered. 0 BY ELECTRONIC SERVICE On December 10, 2015, via electronic transmission to One Legal LLC e-service via the Internet as a scanned image of the document. M I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correctto the best of my knowledge. Executed on December 10, 2015 at Irvine, California. Alison Melanson NGSYL (Signature) BN 17339442v1