Motion_to_strike_not_initial_pleadingMotionCal. Super. - 2nd Dist.December 15, 2017Electronically FILE DJ OO 00 JI A N Wn BA W N = N N N N N N N N N e m e m e m e m e m e m e d e m 0 NN O N Ln BRA W N D = O D N N N R E W D = Oo y Superior Court of California, County of Los Angeles on 05/07/2020 06:48 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Soto,Deputy Clerk Jonathan A. Michaels, Esq. - State Bar No. 180455 (jmichaels@mlgaplc.com) Kyle Gurwell - State Bar No. 289298 (kgurwell @mlgaplc.com) Audrey Beck, Esq. - State Bar No. 328467 (abeck @mlgaplc.com) MLG, APLC 600 Anton Blvd., Suite 1240 Costa Mesa, CA 92626 T. (949) 581-6900 F. (949) 581-6908 Attorneys for Plaintiff, Raven Starre SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES RAVEN STARRE, an individual, Plaintiff, Vv. BROOKE MARCH, an individual; SCOTT CERVINE, an individual; PETER KIRKPATRICK, an individual; JASON STARR, an individual; MIKA SHOEMAKER, an individual; NANCY JOHNSON, an individual; AMY SHEELY, an individual; BETH BAYARD, an individual; CRAIG SHOEMAKER, an individual; DEBRA ARTURA, an individual; STEVEN CERVINE, an individual; KANG VANG, an individual; MINDY WEATHERS, an individual; and DOES 1 to 25, inclusive, Defendants. Case No. BC687258 Assigned for All Purposes To: Hon. Teresa A. Beaudet Dept.: 50 PLAINTIFF RAVEN STARRE’S NOTICE OF MOTION TO STRIKE OR TAX COSTS; POINTS AND AUTHORITIES IN SUPPORT [Filed and served concurrently with Declaration of Audrey Beck, Esq.; Request for Judicial Notice.; and [Proposed] Order] Date: TBD Time: TBD Dept... TBD Reservation No. TBD Complaint filed: December 15, 2017 FAC Filed: August 22, 2018 SAC Filed: March 1, 2019 1 PLAINTIFF RAVEN STARRE’S MOTION TO STRIKE OR TAX COSTS; POINTS AND AUTHORITIES IN SUPPORT OO 00 JI A N Wn BA W N = N S N N N N N N N N ND e m e m e m e m e m e m p m e m 0 NN O N Ln BRA W N D = O D N N N R E W D = Oo TO ALL PARTIES AND THEIR COUNSEL OF RECORD: NOTICE IS HEREBY GIVEN that at the date, time and department number yet to be determined for the Court located at 111 North Hill Street Los Angeles, CA 90012, Plaintiff Raven Starre by and through her counsel of record will move and hereby does move this Court to Strike the costs sought by Defendant Nancy Johnson on the grounds her Memorandum of Costs was not submitted timely. In the alternative, Plaintiff seeks to tax the costs sought by Johnson as unreasonable or not reasonably necessary for this litigation. This motion is made pursuant to California Code of Civil Procedure §§ 1032 and 1033.5, and California Rules of Court, Rule 3.1700, and all other applicable law on the ground that Defendant’s Memorandum of Costs includes items that should be stricken and/or taxed under the law. This motion is based on this notice, the accompanying points and authorities, the Declaration of Audrey Beck, Esq., the Request for Judicial Notice, and the complete files and records of this action. MLG, APLC Dated: May 7, 2020 By: Ale YY 4 Jondthan A. Michaels, Esq. Kyle Gurwell, Esq. Audrey Beck, Esq. Attorneys for Plaintiff, Raven Starre 2 PLAINTIFF RAVEN STARRE’S MOTION TO STRIKE OR TAX COSTS; POINTS AND AUTHORITIES IN SUPPORT OO 00 JI A N Wn BA W N = N S N N N N N N N N ND e m e m e m e m e m e m p m e m 0 NN O N Ln BRA W N D = O D N N N R E W D = Oo MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION After being represented by not one, but two sets of attorneys, Defendant Nancy Johnson has filed a trumped-up memorandum of costs that fractures the very statute under which it claims to be authorized. First, Johnson has filed her memorandum of costs well after the time allotted by the California Rules of Court. The notice of entry of judgment was served on March 20, requiring Johnson’s memorandum of cost to be filed no later than 15 days after, or by April 9. Notwithstanding this - and despite having two sets of lawyers providing her advice - Johnson waited until April 20 to file her Memorandum, eleven days after the required filing deadline. This alone is fatal, as controlling California law holds that strict adherence to the 15-day filing deadline is “mandatory,” and that a late-filed Memorandum such as this will result in denial of costs altogether. This rule, which dates back to 1915, has been said by the Court of Appeal to “make eminent sense,” with the offending party “to be conclusively deemed to have waived the costs.” Johnson may have a malpractice claim against her attorneys for missing a critical deadline, but she does not have a right to recover costs from Raven Starr. Further, even if the Court was inclined to consider Johnson’s time-barred Memorandum, the costs identified in are obscenely inappropriate. For instance, without a shred of backup, Johnson “claims” to have incurred $5,747 in filing fees, when the Court docket shows that the $435 first appearance fee is the only motion and filing fee which she incurred entirely herself. She also incredulously claims thousands of dollars for demonstrative exhibits on a case that never even went to trial, and an exorbitant $42,298 for deposition fees when she knows very well that she never incurred such an outrageous expense. Because Johnson’s Memorandum of Costs is flawed beyond redemption, it must be stricken in its entirety. 1 PLAINTIFF RAVEN STARRE’S MOTION TO STRIKE OR TAX COSTS; POINTS AND AUTHORITIES IN SUPPORT OO 00 JI A N Wn BA W N = N S N N N N N N N N ND e m e m e m e m e m e m p m e m 0 NN O N Ln BRA W N D = O D N N N R E W D = Oo II. PROCEDURAL BACKGROUD Raven Starre filed suit against Defendants Brook March, Scoot Cervine, Nancy Johnson, Amy Sheely, Debra Artura, Beth Bayard, and Steven Cervine on December 15, 2017 for false, defamatory, and threatening statements made on a website created by Defendants. On February 13, 2020 Defendant’s prevailed on their Motion for Summary Judgment against Plaintiff Starre. On March 20, this Court served the Notice of Entry of Judgment by mail, making Defendant’s memorandum of costs due by April 9 - fifteen days later, plus five days for service by mail. Defendant did not file and serve her Memorandum until April 20, eleven days late. At the beginning of this lawsuit, all of the defendants were represented by Jason M. Stone, Esq. On August 7, 2019, Defendant Nancy Johnson filed a Substitution of Attorney in which she retained Marc S. Shapiro, Esq. as her new counsel of record. From that date moving forward, she became an individual defendant. As a result, the Memorandum of Costs she filed on April 20, 2020 must only reference the costs she alone incurred. Defendant Johnson cannot now claim that she is entitled to costs for the entire case when she has been on her own since 2019. III. LEGAL ARGUMENT Point No. 1 - Defendant’s Memorandum of Costs was Untimely and Must Be Stricken. Defendant Johnson attempts to recover her costs from Raven Starre by sneaking her Memorandum of Costs past the Court, but her Memo was filed eleven days late, and it must be stricken in its entirety as untimely. The authorities on this point are clear and consistent that the “terms of said section [1033, Code Civ. Proc.] are mandatory, and a substantially strict compliance therewith is required; . . . If the one party fails, within the time prescribed, to file and serve his memorandum of 2 PLAINTIFF RAVEN STARRE’S MOTION TO STRIKE OR TAX COSTS; POINTS AND AUTHORITIES IN SUPPORT OO 00 JI A N Wn BA W N = N S N N N N N N N N ND e m e m e m e m e m e m p m e m 0 NN O N Ln BRA W N D = O D N N N R E W D = Oo costs, then he is to be conclusively deemed to have waived the costs, if any, accruing in his favor.” Griffith v. Welbanks & Co., 26 Cal. App. 477, 480 (Cal. Ct. App. 1915) Defendant Johnson blew her deadline to file her Memorandum of Costs by eleven days. The notice of entry of judgment in the above-entitled matter was served by mail on all parties on March 20, 2020. Decl. Beck, 3. Fifteen days later, plus five days for service by mail means that Defendant was required to file and serve the Memorandum on or before April 9, 2020. Defendant failed to comply with this requirement, and instead filed the Memorandum on April 20, eleven days late. Because Defendant failed to comply with the mandatory requirements imposed upon her, the Memorandum is untimely and should be stricken in its entirety. From the controlling Rule (“a prevailing party who claims costs must serve and file a memorandum of costs within fifteen (15) days after the date of service of the notice of entry of judgment.” CA. ST. CIVIL RULES Rule 3.1700) to more modern case law (“The time provisions relating to the filing of a memorandum of costs, while not jurisdictional, are mandatory.” Sanabria v. Embrey, 92 Cal. App. 4th 422, 426 (2001), citing Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co., 223 Cal. App. 3d 924, 929 (Ct. App. 1990)) the authorities remain the same - and a party that fails to timely submit their Memorandum, like Defendant, waives their claims to all costs. Point No. 2 - Defendant’s Unsubstantiated and Un-incurred Costs Must be Taxed. The costs claimed by Defendant Johnson in the Memorandum on their face are neither reasonably necessary nor reasonable in amount under the circumstances. As such, Defendant’s requested costs must be taxed. Pursuant to California Code of Civil Procedure §1033.5, items allowable as costs must be, “reasonably necessary to the conduct of the litigation rather than merely convenient” and “reasonable in amount.” Cal. Civ. Proc. Code § 1033.5. The determination of reasonableness, “is a question of fact for the trial court, whose decision will be reviewed for abuse of discretion.” Gorman v. Tassajara Dev. Corp. 178 Cal. App. 4th 44, 77 (2009). As outlined below, the costs requested by Defendant in the Memorandum do not meet the requirements of §1033.5: 3 PLAINTIFF RAVEN STARRE’S MOTION TO STRIKE OR TAX COSTS; POINTS AND AUTHORITIES IN SUPPORT OO 00 JI A N Wn BA W N = N S N N N N N N N N ND e m e m e m e m e m e m p m e m 0 NN O N Ln BRA W N D = O D N N N R E W D = Oo e $5,747.13 for Filing and Motion Fees (item 1). The $435 first appearance fee is the only motion and filing fee which Ms. Johnson incurred entirely herself. (See Request for Judicial Notice “RJN” Exhibit 2). All other motion and filing fee costs would be split between all defendants if they were incurred at all. After adding fees that were likely incurred, there is $4,812.13 in unexplained filing and motion fees. e $152.46 for Jury Fees (item 2). The Fee Schedule lists Advance Jury Fee as $150. (See RIN, Ex. 2). Presumably the additional $2.46 is an electronic filing fee or surcharge, which Defendant appears to seek separately in item No. 14 below. Double recovery is not allowed. o $42,298.52 for Deposition Costs (item 4). This request amount for a single party is unreasonable and leads to the inference that attorney time in preparing for the deposition is included impermissibly. eo $2,599.62 for Models, Enlargements, and Photocopies of Exhibits (item 12). Pursuant to §1033.5, such exhibits are allowed if they were reasonably helpful to aid the trier of fact.” (Emphasis added). Here, it is impossible to determine whether the copies were “reasonably helpful to aid the trier of fact.” e $781.63 for Fees for Electronic Filing or Service (item 14). The cents included in items No. 1 and 2 listed above suggest that those items have electronic filing and service charges included. Double recovery is not allowed. Defendant’s claimed costs are facially unreasonable for an individual party. Johnson flagrantly inflates her costs or includes impermissible costs. As a result, all of Defendant’s costs mentioned in the foregoing paragraphs should be taxed. Point No. 3 - Defendant Nancy Johnson Cannot Meet Her Burden to Substantiate the Challenged Costs As a result of Plaintiff’s Motion to Strike or in the Alternative Tax Defendant’s Costs, the burden shifts to the Defendant to substantiate all challenged costs. When costs are objected to, “they are put in issue and the burden of proof is on the party claiming them as costs.” Ladas v. California State Auto. Assn., 19 Cal. App. 4th 761, 774 (1993). Here, Ms. Johnson will not be able to prove that her claimed costs are proper. As explained above, Defendant cannot prove that the costs claimed are recoverable, were actually incurred or that they were necessary and reasonable pursuant to California Code of Civil Procedure §1033.5. Given that Defendant is a single individual, her requested costs for filing and 4 PLAINTIFF RAVEN STARRE’S MOTION TO STRIKE OR TAX COSTS; POINTS AND AUTHORITIES IN SUPPORT OO 00 JI A N Wn BA W N = N S N N N N N N N N ND e m e m e m e m e m e m p m e m 0 NN O N Ln BRA W N D = O D N N N R E W D = Oo motion fees along with her deposition costs are astronomical. Additionally, the costs requested for models, enlargements, and photocopies of exhibits is ridiculous given that this case did not go to trial and Ms. Johnson provided no evidence whatsoever that such exhibits were actually helpful to aid the trier of fact. Furthermore, Defendant’s request for fees for electronic service demonstrates her scheme to attain double recovery. It is apparent that Ms. Jonson’s attempts have been in vain and the costs listed in her Memorandum are completely distorted and do not reflect actual fees that may have been incurred during the underlying case. Iv. CONCLUSION Defendant’s untimely Memorandum must be stricken in its entirety. With the notice of entry of judgment served by mail on March 20, 2020, Defendant had 15 days with which to file and serve her Memorandum however, Defendant made the choice to wait an entire month to do so. Defendant failed to comply with the mandatory time provisions and her Memorandum must be stricken. MLG, APLC Dated: May 7, 2020 By: Ale Gore JogdthanA. Michaels, Esq. Kyle Gurwell, Esq. Audrey Beck, Esq. Attorneys for Plaintiff, Raven Starre 5 PLAINTIFF RAVEN STARRE’S MOTION TO STRIKE OR TAX COSTS; POINTS AND AUTHORITIES IN SUPPORT
