Leslie Taylor vs. Residential Credit Solutions, Inc.

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.May 5, 2015

HS H W N w n Joseph R. Manning, Jr., Esq. (State Bar No. 223381) THE LAW OFFICES OF JOSEPH R. MANNING, JR. A PROFESSIONAL CORPORATION 4667 MacArthur Blvd., Suite 150 Newport Beach, CA 92660 (949) 200-8755 Phone (866) 843-8308 Fax info@manninglawoffice.com Attorneys for Plaintiffs LESLIE TAYLOR and RON MCLAUGHLIN SUPERIOR COURT OF CALIFORNIA J O S E P H R . M A N N I N G , JR ., E S Q . 4 6 6 7 M A C A R T H U R B L V D . , ST E. 15 0 O o w w 3 A N N O R D N r m m m e d e m e d e s e d e l e m A WL W O N = © v w 0 N N n h s W N = O a N N E W P O R T B E A C H , C A 9 2 6 6 0 N O N N N N © = a w n IN AND FOR THE COUNTY OF ORANGE LESLIE TAYLOR,an individual, and RON MCLAUGHLIN, an individual, Plaintiffs, V. RESIDENTIAL CREDIT SOLUTIONS, INC.a business entity form unknown, BARRETT, DAFFIN, FRAPPIER, TREDER & WEISS, LLP, a business entity form unknown; THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWMBS, INC., CHL MORTGAGE PASS-THROUGH TRUST 2007-12 MORTGAGE PASS-THROUGH CERTIFICATES, SERVICES 2007-12, a business entity form unknown, BANK OF AMERICA, N.A., a business entity form unknown, and DOES 1-100, inclusive, Defendants. Case No.: 30-2015-00785962-CU-OR-CJC Assignedfor all purposes to Hon. Gregory H. Lewis PLAINTIFF'S MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES DATE: January 30, 2017 TIME: 10:30 AM DEPT: C26 RESERVATION NUMBER: 72476400 PLEASE TAKE NOTICE that on January 30, 2017 at 10:30 a.m., Plaintiffs LESLIE TAYLOR and RON MCLAUGHLIN will move for an order to Tax Costs re the Memorandum ofCostsfiled by Defendants RESIDENTIAL CREDIT SOLUTIONS, INC. and THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE PLAINTIFE’S OPPOSITION TO DEMURRER OF NATIONSTAR AND US BANK TO COMPLAINT 1 J O S E P H R . M A N N I N G , JR ., E S Q . 4 6 6 7 M A C A R T H U R B L V D . , ST E, 15 0 O 0 0 1 S y in n b s R O N D N = e m p m e m e e d e e e e e e e d H O W O N O W N Y n n A w N N = O R N N E W P O R T B E A C H , C A 9 2 6 6 0 N N N Y N N D 0 3 W w CERTIFICATEHOLDERS OF CWMBS, INC., CHL MORTGAGE PASS-THROUGH TRUST 2007-12 MORTGAGE PASS-THROUGH CERTIFICATES, SERVICES 2007-12 (collectively, “Defendants™). This hearing will take place in Department C26 ofthe above-entitled Court located at 700 West Civic Center Drive, Santa Ana, CA 92701. Plaintiffhereby moves the court for an order taxing costs in the total amount of$3,047.67, under California Rule of Court (“CRC”) 3.1700, as follows: the total amount of fees requested by Defendants, in the amount of$3,047.67, should be reduced to zero because Defendants are not prevailing parties under Code of Civil Procedure (“CCP”) §1033.5. In addition, Defendantsfail to provide support for the reasonableness oftheir requests. This motion is based on CRC 3.1700 and CCP §1033.5 and supported by the accompanying Memorandum of Points and Authorities, Declaration of David Fitzgerald, Esq., all pleadings, exhibits, and papers on file, and any oral arguments that may be presented at the time of the hearing on this motion. Dated: November 3, 2016 LAW OFFICES OF JOSEPH R. MANNING,JR. A PROFESSIONAL CORPORATION By JosephMM Attorney for Plaintiff PLAINTIFF'S OPPOSITION TO DEMURRER OF NATIONSTAR AND US BANK TO COMPLAINT 2 EA N O o 0 3 O N W n A N n n B A W J E R S E Y B E A C H , C A 9 2 6 6 0 r o J U N E F P H K K , V I A N N I N G , J K . B L D Q . 4 6 6 7 M A C A R T H U R BL VD ., ST E. 15 0 c o L MEMORANDUM OF POINTS AND AUTHORITIES A. Introduction Plaintiffs sued Defendants for violations of the Homeowner's Bill of Rights, violations of Business and Professions Code §17200, negligence, and Plaintiffs’ demanded an accounting. Through the course of demurrers to the complaint, Plaintiffs’ claims were reduced to the demand for an accounting. Plaintiffs’ dismissed their case without prejudice on October 5, 2016. Defendants served their Memorandum of Costs (“Memorandum”) on October 17, 2016. Defendants requests costs in the amount of $2,879.19 for filing and motion fees, $140.98 for service of process, and $27.50 for “other.” Plaintiff seeks an order taxing the costs requested in the Memorandum to zero on the grounds that the costs claimed are not permitted to be recovered by statute, were not reasonably nor necessarily incurred in the defense ofthis action, or are unreasonably excessive. B. Legal Argument The right to recover costs “is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered...” Davis v. KGO-TV, Inc. (1998) 17 Cal. 4th 436, 439. Costs claimed must be reasonably necessary to the prosecution or defense of the action, and must be reasonable in amount. C.C.P. §1033.5(c)(2), (3). The Court has the power to disallow statutorily authorized costs if they were not reasonably necessary, and to reduce the amount of any cost item which is excessive to an amount which is reasonable. Pwerko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245. For clamed costs which cannot be determined to be proper charged recoverable under statute, the burden of proof is on the party claiming the costs to show that the costs were necessarily and reasonably incurred. Ladas v. California State Automobile Assoc. (1993) 19 Cal.App.4th 761, 775-776. Plaintiffs in this case dismissed without prejudice and reserve the right to refile their case at a later date. A cause of action remained at the time of voluntarily dismissal and there was no disposition ofthis claim on the merits. Defendants are not the prevailing parties and are therefore not entitled to recover costs. PLAINTIFF'S MOTION TO TAX COSTS 3 2 S o 9 Y n B S N n y B s W w J E W E S R T BE AC H, G A 9 2 6 6 0 o J U S E P H K . I V I A N N I N G , J K . E D O . 4 6 6 7 M A C A R T H U R B L V D . , S T E . 1 5 0 0 Even if Defendants are entitled to costs, Defendants have not provided any documentation to support their Memorandum and to establish that the amounts as claimed are reasonable. No description is provided for the amount of $2,879.19 beyond “filing and motion fees.” There is no way to tell which amounts were spent where and on what. Furthermore, the amount of $27.50 is requested as “other” with no description offered at all. As such, there is no support for the costs requested by Defendants and there is no basis to determine the reasonableness of the requests. IL. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that this Court reduce the total amount of costs requested by Defendants, in the amount of $3,047.67, be reduced to zero. Dated: November 3, 2016 LAW OFFICES OF JOSEPH R. MANNING,JR. A PROFESSIONAL CORPORATION PLAINTIFF'S MOTION TO TAX COSTS 4 H O W O o 0 = O Y ( G A 9 2 6 6 0 ro w n H W B E A C H J U S E F H KK . I V I A N N I N G , JK ., E S Q . E W P O R T N o ~ J 4 6 6 7 M A C A R T H U R B L V D . , S T E , 1 5 0 ND oN N N o 0 PROOF OF SERVICE - CCP.1013A STATE OF CALIFORNIA, COUNTY OF ORANGE 1, the undersigned, am employed in the County of Orange, State of California. I am over the age of eighteen (18) years and not a party to the cause. My business address is 4667 MacArthur Blvd., Suite 150, Newport Beach, CA 92660. On 11/3/16 1 served the true copies of the foregoing document described as PLAINTIFFS NOTICE AND MOTION TO STRIKE COSTS; MEMRANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in this action, addressed as follows: Todd E. Chvat, Esq. SBN238282 Wright, Finlay & Zak, LLP 4665 MacArthur Court, Suite 280 tchvat@wrightlegalnet [ 1BY United States Postal Service: The documents were mailed as set forth above by U.S. Mail and placed in sealed, addressed envelopes on the above date and deposited into a U.S. Postal Service Mail box on the date set forth above, with postage thereon fully prepaid at Newport Beach, California prior to the time for collection on that day. [ ]1BY Personal Service. I caused personal delivery by Attorney Service of said documents to the offices of the addresses as set forth on the service list. [X] BY Electronic Mail or Electronic Service. I caused each such document to be transmitted electronically to the parties at the e-mail address indicated. To the best of my knowledge, the transmission was reported as complete and no error was reported that it was not completed. [ ]1BY Facsimile. I caused the documents to be sent to the parties at the fax number indicated. To the best ofmy knowledge, the transmission was reported as complete and no error was reported that it was not complete. [ ]1BY Overnight Mail, Next Day Delivery. I placed true and correct copies of said document enclosed in a package in the pick up location designated by Norco Overnite with the delivery fees provided for. I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this affidavit was executed on 11/3/16 smi / David Fitzgerald PLAINTIFF'S MOTION TO TAX COSTS 5