Motion To Strike Or Tax Costs

Motion

Cal. Super. - 4th Dist.April 27, 2017

MO . ul a r w ) c y D O N C S IR E ed IS © p i ae d pe c e e ( e T R E A C T S a d gm a Ee la d = 0 00 N U R W N N O = e John B. Barriage, CSBN 120462 Attorney at Law 374 E. H Street. A-244 Chula Vista, CA 91910 MICALLY FILED (858) 663-0660 ELECTRON urt of California, Johnbarriage(@ gmail.com County of Orange Attorney for Plaintiff 03/18/2019 at 11:58:00 AM GPS AUTO SALES LLC. Clerk of the Superior Court By Amy Allen, Deputy Clerk SUPERIOR COURT OF CALIFORNIA ORANGE COUNTY CENTRAL JUSTICE CENTER GPS Auto LL.C ) Case No.: 30-2017-00917058-CL-BC-CIC Plaintiff, ) ) PLAINTIFF GPS AUTO LLC.'S MOTION ) TO TAX COSTS; MEMORANDUM OF ) POINTS AND AUTHORITIES IN SUPPOR VS. ) THEREOF QUALITY ACCEPTANCE. ) Defendant. ) ) ) Date: Thursday May 9, 2019 ) Time: 9:30 AM ) Dept: C-3 ) INTRODUCTION PLAINTIFF'S MOTION TO TAX COSTS -1f 0 0 N O vn E W N — N N -= OO Defendant QUALITY ACCEPTANCE, within 15 days of plaintiff's request for dismissal of the case on the day of trial (e.g. February 11, 2019) filed a memorandum of Costs. Plaintiff objects to the amounts claimed because at the time the court dismissed the case, there was only one remaining defendant, Quality Acceptance. Four other defendants affiliated with Quality Acceptance were dismissed on August 11, 2017. (i.c. Defendants Ofer Alon, Iftach Aloni, Yariv Gilboa, and Eyal Levani.). See Declaration of John Barriage p. 2, II. 3-5 and attached Exhibit 1 "Dismissal). As such given that four defendants were not before the court on February 11, 2019 the judgment of dismissal applied only 10 Quality Acceptance and not the four previously dismissed defendants. Under California law those dismissed defendants only had 180 days after August 11. 2017 to file a memorandum of costs. They did not do so and under California Rules of Court Rule 3.1700 (a) (1) (c.g. 180 days) the costs for these dismissed parties are time barred. ARGUMENT L. PLAINTIFF IMPROPERLY SEEKS $1910.00 ON ITEM 1 OF THE MEMORANDUM AND IL IS ONLY ENTITLED TO $370.00 FOR ONE DEFENDANT REMAINING A. DEFENDANT DID NOT BREAK DOWN COSTS SHOWL NG APPORTIONMENT TO INDIVIDUAL PARTIES. Defendant QUALITY ACCEPTANCE when it filed its Memorandum of Costs (Form MC- 010) on February 26. 2019 it did not include the Judicial Council Form MC-011. the "Memorandum of Costs Worksheet”, breaking down with specificity both the type of costs and whose costs they are attributed. B. FILING FEES OBJECTIONABLE AS AGGREGATED AMOUNT (1) EXCEEDS AMOUNT SHOWN AS PAID ON REGISTER OF ACTION At item 1 of the memorandum, defendant secks filing fees of $1,910.00. Yet the Court's Register of Actions clearly shows that defendants’ first paper fees paid on June 15, 2017 was $1,850.00. Since the first paper filing fee in limited jurisdiction cases for 2017 was $370.00 per party, there is a discrepancy of $60.00. (See Court Register of Actions Item 11 attached as Exhibit 2 to the Declaration of John Barriage) PLAINTIFF'S MOTION TO TAX COSTS -2t 9 0 0 SS ) C E R C R A d e T W R Y C e pe t ed md md pe d pe d ed pe d C. FOUR DEFENDANTS LONG DISMISSED AGO NOT BEFORE THE COURT AT TIME THE COURT DISMISSED THE CASE AND THE MEMORANDUM OF COSTS SHOULD ONLY APPLY TO DEFENDANT QUALITY ACCEPTANCE When the court dismissed the case, at the request of plaintiff on February 11, 2019. Only one defendant was before the court, QUALITY ACCEPTANCE. four affiliated defendants were not before the court. , They had been previously dismissed on August 11, 2017 (See Exhibit 1 to John Barriage Declaration, and Barriage Declaration page 2, lines 3-5) Therefore. the only party the order of dismissal entered February 11. 2019, only applied to one defendant, Quality Acceptance. D. TIME BARRED AS TO PREVIOUSLY DISMISSED DEFENDANTS As four co-defendant individuals were dismissed a vear and a half. and their fees are time barred. plaintiff can only reccive $370.00 in filing fees. not $1910.00. there is, therefore, a $1.540,00 discrepancy. This discrepancy can only be explained by defendant's including the four other defendants dismissed on August 11,2017! Given that defendant fails to specify why it is secking considerably more than a one-party limited jurisdiction first paper fee, as it could have by filing 2 memorandum of Costs worksheet, plaintiff can only infer that this must be for the four dismissed defendants specified in footnote 1 below and in plaintiff's Exhibit | (Attached to Barriage Declaration). The time to file of 180 days has passed as to four of the defendants and filing fees are now time barred. While California Rules of Court rule 3.1700 couches the 15 days’ time to file a Cost memorandum after entry of judgment, California Law deems the voluntary filing of a dismissal, to be in cffect as a judgment at the time of filing, and therefore. the 180-day time period to file a memorandum of Costs commences 180 days afier dismissal. In other words, a formal Entry of Judgment, or Notice, thereof, is not required for the time to commence. In Fries v. Rite Aid Corporation (2009) 173 Cal. App. 4th 182, the court found that the notice of dismissal was effective to commence the time requirement, and that a formal entry of judgment was not required and if timely filed afier service of a dismissal the memorandum would be timely. * Defendants Ofer Alon, Iftach Aloni, Yariv Gilboa, Eyal Levari, were all dismissed on August 11, 2017. See Plaintiff's Exhibit 1 attached to the Declaration of John Barriage in Support of Motion to Tax, Strike Costs filed with this motion. PLAINTIFF'S MOTION TO TAX COSTS -3f W N NG E E e l Under Rule 3.1700 defendant was required to file and serve the memorandum of Costs within fifteen days of after the date of the service of Notice of Entry of Judgment or dismissal by the clerk. or within 180 days afier as entry of judgment , whichever is first. In this case the dismissal to four of the five defendants was filed on August 11, 2017, 565 days days before, therefore, any and all costs incurred by these four defendants are timed barred and defendant should only be awarded costs as to the only defendant remaining in the case. when it was dismissed on February 11. 2019. E. DISMISSED INDIVIDUALS DID NOT CLAIM FILING FEES The Memorandum of Costs was filed by Defendant Quality Acceptance, an entity, it was not filed by individual defendants. previously dismissed, specifically Ofer Alon, IftachAloni, Yariv Gilboa, and Eyatl.evari. all of whom were dismissed on August 11, 2017. Those defendants did not file memorandum of costs on February 26, 2019. 2. INTREPETER FEES CLAIMED AT ITEM 13 ARE NOT ALLOWED by CCP SECTION 1035.5 At item 13 of the Cost Memorandum, defendant claims "interpreter’s fees of $210.55. The memorandum does not explain how. why or when an interpreter was u ilized, or how such an item is allowed as costs. Code of Civil Procedure Section 1033.5 (a) 12, says the following about when interpreter fees are allowed as costs: (12) Court interpreter fees for a qualified court interpreter authorized by the court for an indigent person represented by a qualified legal services project, as defined in Section 62 13 of the Business and Professions Code, or a pro bono attorney, as defined in Section 8030.4 of the Business and Professions Code * (CCP. Section 10335 (a) 12.) The court in this case did not authorize interpreter fees at any stage of the proceedings, The above quoted section of the Code of Civil Procedure, is the only allowance for "interpreter Fees” and defendant does not qualify. Therefore, the claim for $$210.55 cannot be allowed and must be stricken from - cost. memorandum. CONCLUSION Based on the foregoing $1,430.00 in filing fees claimed in item 1 should be disallowed as should be $210.55 in Interpreter fees in item 13. Therefore, the amount claimed must be reduced to $704.28. PLAINTIFF'S MOTION TO TAX COSTS -4} ra Oo 0 9 wn Dated: March 17, 2019 T John . Barriage, Attorney For t GPS AUTO SALES LLC. PLAINTIFF'S MOTION TO TAX COSTS