Mary Campbell vs. Premier Trust of Nevada, Inc., Trustee of The Family Trust of The Hugh R. Campbell Revocable Family Trust

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.June 9, 2016

BL uT L A W G R O U P , A P C 10 10 0 S A N T A M O N I C A BL VD ., SU IT E 30 0 Lo s A N G E L E S , C A 90 06 7 oe 0 N N U n A W N NN N N N N N N N N E m pm m e em em em R N S RAR W N R N S R W DN = O ELECTRONICALLY FILED Superior Court of California, ELLIOT S. BLUT, ESQ. (SBN 162188) OBI SH caw GROLE, APC . Clerk of the Superior Court anta Monica Boulevard, Suite 300 By Angelina Nguyen-Do, Deputy Clerk Los Angeles, CA 90067 Telephone: (310) 203-0038 Facsimile: (310) 203-0048 Attorney for Plaintiff MARY CAMPBELL, Individually and as Trustee of the Marital Trust of the Hugh R. Campbell Revocable Family Trust SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE MARY CAMPBELL, an individual; MARY CASE NO. 30-2016-008570830-CU-OR-CIJC CAMPBELL, Trustee of the Marital Trust of the Hugh R. Campbell Revocable Family The Hon. Gregory H. Lewis Trust, Dept No.: C26 Plaintiffs, MARY CAMPBELL’S NOTICE OF MOTION AND MOTION TO TAX COSTS; Vs. MEMORANDUM OF POINTS AND AUTHORITIES PREMIER TRUST OF NEVADA, INC., Trustee of the Family Trust of the Hugh R. Reservation No. 72634854 Campbell Revocable Family Trust; DOES 1- 10; Date: October 23, 2017 Time: 10:30 a.m. Defendants. TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 23, 2017 at 10:30 a.m. in Department C26 of the Superior Court of Orange County located at 700 Civic Center West, Santa Ana, California, Plaintiff MARY CAMPBELL will move this Court for an order reducing or taxing costs that are improper, unreasonable, and/or not reasonably necessary as listed in Defendant Premier Trust of Nevada, Inc.’s Memorandum of Costs. 1 MOTION TO TAX COSTS BL uT L A W G R O U P , A P C 10 10 0 S A N T A M O N I C A BL VD ., SU IT E 30 0 Lo s A N G E L E S , C A 90 06 7 oe 0 N N U n A W N NN N N N N N N N N E m pm m e em em em R N S RAR W N R N S R W DN = O This Motion is made pursuant to California Code of Civil Procedure § 1033.5 and California Rules of Court, Rule 3.1700(b)(1) on the grounds that (1) defendants do not have service of process costs and (2) the attorneys’ fees requested are exorbitantly large for a case with only one motion and no itemized bills were attached to justify such large bills. This motion is based on this the accompanying Memorandum of Points and Authorities, the pleadings, records and files in this action, and such further evidence and argument as may be presented at or before the hearing on this Motion. DATED: July 31, 2017 BLUT LAW GROUP, APC By: /s/ Elliot S. Blut ELLIOT S. BLUT Attorney for Plaintiff, MARY CAMPBELL, individually and as Trustee of the Marital Trust of the Hugh R. Campbell Revocable Family Trust 2 MOTION TO TAX COSTS BL uT L A W G R O U P , A P C 10 10 0 S A N T A M O N I C A BL VD ., SU IT E 30 0 Lo s A N G E L E S , C A 90 06 7 oe 0 N N U n A W N NN N N N N N N N N E m pm m e em em em R N S RAR W N R N S R W DN = O MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant seeks items of costs to which they are not entitled. Specifically, the Memorandum of Costs improperly demands reimbursement for the following items: e Service of Process. A Defendant does not have service of process costs. e Attorneys fees. The attorney’s fees are exorbitantly high for a case with only one motion and no discovery propounded by the defendant. Accordingly, the Court should deny Defendant’s improper requests for costs. II. LEGAL ARGUMENT California recognizes three types of litigation costs: (1) allowable; (2) disallowable; and (3) discretionary. CCP § 1033.5. For allowable or discretionary costs to be recoverable, they must also be both “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” CCP § 1033.5 (c)(2)-(3). “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” Ladas v. Cal. State Auto. Ass'n, 19 Cal. App. 4th 761, 774, 23 Cal. Rptr. 2d 810, 817 (1993), citing Melnyk v. Robledo, 64 Cal. App. 3d 618, 624 (1976); Oak Grove School Dist. v. City Title Ins. Co., 217 Cal. App. 2d 678, 698-699 (1963). Whether a cost is reasonable is a question of fact. Lubetzky v. Friedman, 228 Cal. Ap. 3d 35, 39 (1991). A. As a Defendant, Premier Trust of Nevada Did Not Have To Serve Process. Number 4 on the Memorandum of Costs is listed Service of Process with a fee of $273. However Premier Trust of Nevada is a defendant and service of process is a plaintiff’s cost or related to a subpoena for documents. Plaintiff is unaware of any service of process that could have been incurred in this action. In order to recover this cost, Premier Trust of Nevada should be required to explain and justify it. 3 MOTION TO TAX COSTS BL uT L A W G R O U P , A P C 10 10 0 S A N T A M O N I C A BL VD ., SU IT E 30 0 Lo s A N G E L E S , C A 90 06 7 oe 0 N N U n A W N NN N N N N N N N N E m pm m e em em em R N S RAR W N R N S R W DN = O B. The Attorneys’ Fees Sought By Premier Trust of Nevada Are Very High and Without Itemization. Item Number 10 on the Memorandum of Costs was Attorneys’ Fees in the amount of $39,280.50. This amount is very high for this case. To be reimbursable as a cost to a prevailing party, an expense must be reasonably necessary to the litigation and reasonable in amount. CCP § 1033.5(c)(3); Thon v. Thompson, 29 Cal. App. 4™ 1546 (1994). Defendants answered and then filed one motion for an order to schedule occupancy and a motion amend the schedule for the convenience of its lawyer. The motion for a schedule for occupancy at the property at issue in the partition action was brought for hearing within two months of the original trial date. The Court declined to rule on the occupancy issue and referred the matter to a referee. Has the original trial date remained, the appointment would have been within two weeks of the trial date. This was a matter that could have been reserved for the referee appointed by the court after the trial to manage the property and conduct the sale. The motion to continue was not necessary to the case. The Trial was set almost ten months prior to the date and counsel’s wife was expecting a child. The parties could not agree on the length of the continuance but in any event, this was not necessary to the matter. No depositions were conducted. A small amount of written discovery was conducted. Then Plaintiff dismissed the case. It is hard to conceive how attorneys’ fees for Premier Trust of Nevada, Inc. could have reached nearly $40,000 for the limited amount of work involved in this case. The fees requested are clearly not reasonable and not recoverable under CCP § 1033.5. No attorney bills were submitted and the block amount requested is not justified. 111 Il 111 Il 111 Il 4 MOTION TO TAX COSTS BL uT L A W G R O U P , A P C 10 10 0 S A N T A M O N I C A BL VD ., SU IT E 30 0 Lo s A N G E L E S , C A 90 06 7 oe 0 N N U n A W N NN N N N N N N N N E m pm m e em em em R N S RAR W N R N S R W DN = O III. CONCLUSION In their Memorandum of Costs, Premier Trust of Nevada, Inc. seeks more than they are entitled to and they should not recover without proving to the Court that these costs are justified. Plaintiff respectfully requests that the Court tax the costs. DATED: July 31, 2017 BLUT LAW GROUP, APC By: /s/ Elliot S. Blut ELLIOT S. BLUT Attorney for Plaintiff, MARY CAMPBELL, individually and as Trustee of the Marital Trust of the Hugh R. Campbell Revocable Family Trust 5 MOTION TO TAX COSTS AN Ln BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 PROOF OF SERVICE Campbell, et al. v. Premier Trust of Nevada, Inc., Orange County Case No. 30-2016-00857083 I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action. My business address is 10100 Santa Monica Boulevard, Suite 300, Los Angeles, CA 90067. On August 1, 2017, I served the foregoing document described as MARY CAMPBELL’S NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES on all interested parties as follows: Ryan A. Ellis, Esq. HOWARD & HOWARD ATTORNEYS PLLC 2049 Century Park East, Suite 330 Los Angeles, CA 90067 (BY HAND): By giving a true copy(ies) thereof in sealed envelope(s) to (name of service) for hand delivery to the office of the party(ies) listed above. (BY MAIL) By placing a true copy in envelope(s) addressed as referenced above. The envelope(s) were then sealed and deposited for collection and mailing in accordance with my employer’s normal procedures. I am readily familiar with the firm’s practice for collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service, with all postage prepaid, at Los Angeles, California, on the same day in the ordinary course of business. (BY EMAIL): I transmitted the document electronically to the email addresses shown above. (BY OVERNIGHT DELIVERY) By placing a true copy in envelope(s) addressed as listed above. The envelopes were then sealed and deposited for collection and delivery in accordance with my employer’s normal procedures. I am readily familiar with the firm’s practice for collection and processing correspondence for overnight delivery. Under that practice it would be placed in a box or other facility regularly maintained by the express service carrier, or delivered to an authorized courier or driver authorized by the express service carrier to receive documents. (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on August 1, 2017, at Los Angeles, California. /s/ Linda Dinerstein Linda Dinerstein PROOF OF SERVICE