This case was last updated from Los Angeles County Superior Courts on 02/05/2019 at 06:42:56 (UTC).

ARTURO AGUILAR VS JONATHAN C. ROSEN ET AL.

Case Summary

On 08/27/2015 ARTURO AGUILAR filed a Contract - Professional Negligence lawsuit against JONATHAN C ROSEN. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are JOHN P. DOYLE and RALPH C. HOFER. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4392

  • Filing Date:

    08/27/2015

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Professional Negligence

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JOHN P. DOYLE

RALPH C. HOFER

 

Party Details

Plaintiff

AGUILAR ARTURO

Defendants

JCR LAW GROUP INC.

LAW OFFICES OF JONATHAN C. ROSEN

ROSEN JONATHAN C.

Attorney/Law Firm Details

Plaintiff Attorney

REICHENEDER DALE

Defendant Attorneys

EDWARD O. LEAR

NEMECEK & COLE

WLA LEGAL SERVICES

 

Court Documents

Ex Parte Application

12/3/2018: Ex Parte Application

Minute Order

12/3/2018: Minute Order

Notice of Ruling

12/3/2018: Notice of Ruling

 

Docket Entries

  • 12/03/2018
  • at 08:30 AM in Department D; Hearing on Ex Parte Application (name extension) (For Order To Be Relieved As Counsel For Plaintiff, filed 12/03/2018;) - Held - Motion Granted

    Read MoreRead Less
  • 12/03/2018
  • Ex Parte Application (name extension) (and Motion for Order to be Relieved as Counsel for Plaintiff); Filed by ARTURO AGUILAR (Plaintiff)

    Read MoreRead Less
  • 12/03/2018
  • Notice of Ruling (Regarding Dale Reicheneder's Ex Parte Application to be Relieved as Plaintiff's Counsel); Filed by ARTURO AGUILAR (Plaintiff)

    Read MoreRead Less
  • 12/03/2018
  • Order (name extension) (re: Dale Reicheneder Is Releived As Counsel For Plaintiff); Filed by ARTURO AGUILAR (Plaintiff)

    Read MoreRead Less
  • 12/03/2018
  • Minute Order ( (Hearing on Ex Parte Application For Order To Be Relieved As C...)); Filed by Clerk

    Read MoreRead Less
  • 12/03/2018
  • Clerk's Application to Vacate and Order (re: Dale Reicheneder Is Relieved As Counsel For Plaintiff)

    Read MoreRead Less
  • 10/26/2018
  • Appeal Record Delivered; Filed by Clerk

    Read MoreRead Less
  • 10/23/2018
  • Appeal - Original Clerk's Transcript 6 - 10 Volumes Certified; Filed by Clerk

    Read MoreRead Less
  • 09/21/2018
  • Notice-Pty-Fee Clerk's Transcript; Filed by Clerk

    Read MoreRead Less
  • 09/21/2018
  • Notice-Pty-Fee Clerk's Transcript; Filed by Clerk

    Read MoreRead Less
299 More Docket Entries
  • 09/04/2015
  • Proof-Service/Summons; Filed by ARTURO AGUILAR (Plaintiff)

    Read MoreRead Less
  • 09/04/2015
  • Proof-Service/Summons; Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 09/04/2015
  • Proof-Service/Summons; Filed by ARTURO AGUILAR (Plaintiff)

    Read MoreRead Less
  • 09/04/2015
  • Proof-Service/Summons; Filed by ARTURO AGUILAR (Plaintiff)

    Read MoreRead Less
  • 09/02/2015
  • Notice of Continuance (- NOTICE RE: CONTINUANCE OF HEARING - ORDER TO SHOW CAUSE PREVIOUSLY SET FOR NOVEMBER 11, 2015 IS RESET TO NOVEMBER 12, 2015); Filed by Clerk

    Read MoreRead Less
  • 09/02/2015
  • Notice Re: Continuance of Hearing and Order; Filed by Clerk

    Read MoreRead Less
  • 08/27/2015
  • Complaint filed-Summons Issued (- VERIFIED COMPLAINT FOR DAMAGES: 1. LEGAL MALPRACTICE; 2. BREACH OF CONTRACT; 3. BREACH OF FIDUCIARY DUTY; 4. NEGLIGENCE - RECEIPT: BUR462569008 08-27-15); Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 08/27/2015
  • Complaint filed-Summons Issued; Filed by ARTURO AGUILAR (Plaintiff)

    Read MoreRead Less
  • 08/27/2015
  • Summons; Filed by ARTURO AGUILAR (Plaintiff)

    Read MoreRead Less
  • 08/27/2015
  • Summons Filed; Filed by Attorney for Plaintiff

    Read MoreRead Less

Tentative Rulings

Case Number: EC064392    Hearing Date: May 28, 2021    Dept: D

TENTATIVE RULING
Calendar: 15
Date: 5/28/2021
Case No: EC064392 Trial Date: None Set 
Case Name: Aguilar v. Rosen, et al. 
MOTION FOR OSC RE CONTEMPT
Moving Party: Respondents Dale Reicheneder and Reicheneder Law Group  
Responding Party: Defendants Jonathan C. Rosen, Esq., JCR Law Group, Inc. and Law Offices of Jonathan C. Rosen  (No Opposition)   
RELIEF REQUESTED:
Order to Show Case Re Why Petitioners/Defendants should not be held in contempt
Order requiring petitioners/defendants to pay a fine of $1,000 as to Jonathan C. Rosen, Esq.
SUMMARY OF FACTS:
Plaintiff Arturo Aguilar brought this action against his former attorney defendant Jonathan C. Rosen, and Rosen's law firms, defendants JCR Law Group, Inc., and Law Offices of Jonathan C. Rosen, alleging that defendants failed to defend plaintiff in an underlying criminal matter with diligence and competence. Specifically, plaintiff alleges that defendants failed to follow up on references to school and inoculation records to establish that at the time of the alleged incident, plaintiff was only eleven years old, not between fifteen and eighteen, and so entitled to have the District Attorney's office prove to the court plaintiff's comprehension and legal understanding of his actions, which under California law does not exist until the age of fourteen. Plaintiff also alleges that defendants failed to follow up to clarify false statements upon which the District Attorney was relying. Plaintiff alleges that defendants failed to visit with plaintiff, communicate progress, or follow up with investigation, but persuaded plaintiff to accept a plea to a false charge, resulting in plaintiff remaining in prison for another year. It is also alleged that defendants then abandoned the matter, but did not legally withdraw as counsel, and have failed to communicate with plaintiff. 
The file shows that on February 1, 2016, the Court, Judge Doyle presiding, heard a motion to file documents under seal in connection with a demurrer to the complaint, based on defendants’ argument that plaintiff’s case was barred for failure of plaintiff to plead factual innocence, at which time it was discovered that the documents defendants intended to rely upon had been sealed by the juvenile court.  After hearing several motions with respect to the issue of the unsealing of those records, and permitting continuances to seek relief in the juvenile court, as well as permitting plaintiff leave to amend the pleading, the Court on February 24, 2017 sustained a demurrer to the Second Amended Complaint without leave to amend, and ordered the Second Amended Complaint dismissed. 
On December 15, 2017, the court heard a motion by defendants for sanctions pursuant to CCP section 128.5 brought against plaintiff and the attorneys for plaintiff in this matter, Dale Reicheneder and Reicheneder Law Group.  Defendants argued that plaintiff’s complaint was frivolous, and plaintiff and his counsel engaged in bad faith conduct throughout the litigation.  Defendants argued that it was clear throughout the litigation that plaintiff would be unable to establish claims against his former attorney arising out of representation in a criminal matter, because plaintiff could not establish his own actual innocence or that his conviction had been set aside in a manner demonstrating exoneration of the charges, as required under applicable law. 
The Court denied the motion, finding that defendants failed to meet the standard for determining the matter to be frivolous, as while the Court had ultimately determined that the factual innocence and post-conviction exoneration elements applied to sealed juvenile proceedings, there was a colorable argument asserted by plaintiff that the elements did not apply to sealed juvenile proceedings, and that there were also attempts being considered with respect to obtaining post-conviction relief throughout the proceeding. 
Defendants appealed the Court’s order denying the motion for sanctions.  
On March 13, 2020, the Second District filed its unpublished opinion in the matter, affirming the trial court order denying sanctions, and finding no abuse of discretion.  The opinion states in the Disposition, “Reicheneder is awarded his costs on appeal.”  
On April 3, 2020, the Second District ordered the March 13, 2020 opinion modified, with no change in the judgment, and denied a petition for rehearing. 
On April 13, 2020, respondents Reicheneder and Reicheneder Law Group filed a Memorandum of Costs, seeking $1,889.20 in costs. 
On April 13, 2020, defendants/appellants filed a motion to strike or tax costs, which did not designate a hearing date.  
Evidently, the defendants/appellants filed a petition for writ of review to the California Supreme Court.   On July 24, 2020, respondents Reicheneder and Reicheneder Law Group filed a Notice indicating that on July 8, 2020, the California Supreme Court had denied petitioner Jonathan C. Rosen, Esq.’s Petition for Review. 
On July 27, 2020, respondents Reicheneder and Reicheneder Law Group filed an Amended Memorandum of Costs, seeking $1,670.00 in costs.
On August 11, 2020, remittitur was filed in this court.  The Remittitur states, “Reichender is awarded his costs on appeal.” 
On December 4, 2020, the court heard a motion to strike or tax costs filed on behalf of the Rosen defendants, which was granted in part.  The court awarded costs in the sum of $1,118.05.  The minute order notes that the order granting the motion was signed and filed that date, and counsel for moving party was ordered to give notice.   
The court’s order was filed on December 4, 2020, and awards $1,118.05 in costs to respondents Dale Reicheneder and the Reicheneder Law Group to be paid, “no later than 30 days after entry” of the judgment and provides that respondent is further entitled to interest on unpaid amounts and reasonable expenses to collect the award.  The order states that “Judgement is entered in favor of Dale Reicheneder, Esq., and against Defendant Jonathan C. Rosen, Esq., in the amount of …$1,118.05.”  
ANALYSIS:
Procedural
The motion seeks an order to show cause why defendants should not be held in contempt of court for disobeying the order to pay the costs awarded within thirty days.   
It does not appear that the motion was personally served on the accused.  The documents were served by email.    
CCP § 1015 permits service of papers on a represented party on counsel for that party, “except service of…papers to bring the party into contempt.”   The section permits service on a party with no attorney to be made on the clerk of the court.   CCP §1016 provides “The foregoing provisions of this Chapter do not apply to the service of summons or other process, or of any paper to bring a party into contempt.”   (Emphasis added).  Accordingly, it is recognized that papers to bring a party into contempt must be personally served on the accused.   See also In re Morelli (1970, 2nd Dist.) 11 Cal.App.3d 819, 835.   
The court accordingly will not consider issuing an order of contempt until proof has been submitted of personal service of the papers on the parties sought to be brought into contempt.  
Substantive
Relief is sought under CCP section 128 (a)(8), under which “Every court shall have the power to do all of the following…(2) Amend and control its process and orders so as to make them conform to the law and justice.”  
The Reicheneder parties also seek relief under CCP section 1209(a), under which contempts of the authority of the court include: 
“(5) Disobedience of any lawful judgment, order, or process of the court….”
To establish entitlement to an order of contempt, the following elements must be proven beyond a reasonable doubt:
(1) the rendition of a valid order,
(2) the accused’s “actual knowledge” of the order,
(3) the accused’s ability to comply with the order, and
(4) the accused’s willful disobedience of the order.  
Conn v. Superior Court (1987, 2nd Dist.) 196 Cal.App.3d 774, 784126 Cal.App.2d 821, 824.  
 
An indirect contempt proceeding must be commenced by “affidavit...of the facts constituting the contempt...”  CCP section 1211(a).   
As an initial matter, it does not appear that this proceeding is necessary, as the order entered a judgment in the subject sum against defendant Rosen and in favor of respondent Reicheneder, which judgment would be considered final and subject to the statutory enforcement of judgment procedures set forth in CCP section 680.010, et seq.  Under CCP section 680.230, “’Judgment’ means a judgment, order, or decree entered in a court of this state.”  CCP section 680.270 states, “’Money judgment’ means that part of a judgment that requires the payment of money.”  The order here was for the payment of a specific sum of costs, so for the payment of money.   
This result is in keeping with legal authorities under which monetary sanctions orders are considered enforceable orders and may be executed on, and the failure to comply punished as contempt.  The Second District in Newland v Superior Court (1995) 40 Cal.App.4th 608, noted:
“Weil and Brown observe that many attorneys seem to be unaware that monetary sanction orders are enforceable through the execution of judgment laws.   (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial 3 (The Rutter Group 1994) PP 9:344.21, 9:344.22, p.9(1) -92.)  These orders have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may order a stay of the sanction.”
Newland, at 615.   
Newland cites CCP sections 680.203, which defines a “judgment” to include an “order...entered in a court of this state,” and 699.510(a), which provides for issuance of a writ of execution by the clerk of the court upon application of the judgment creditor. It is not clear that an order of contempt is appropriately issued against a judgment debtor under these circumstances.  
Assuming relief is available for failure to pay the costs within the time frame specified in the order, it appears that there is a valid order/judgment.  With respect to actual notice of the order on the part of the accused, the file does not show that notice of the ruling or entry of the order or judgment has been served in this matter.  The minute order specifies that moving party was to give notice, which would have been the Rosen defendants.  The declaration in support of the motion does not reference any notice of ruling, which makes it difficult to find that beyond a reasonable doubt that Rosen had notice of the order.   
The motion indicates that Rosen attended the hearing, which is not mentioned in the declaration.  The motion attaches various meet and confer letters which were directed to Rosen but never responded to.   [Reicheneder Decl., para. 6, Exs. C-E].  Reicheneder also filed with the court on January 28, 2021, and served by email a Notice the defendants had not paid the costs as ordered, to which there has also been no response. [Reicheneder Decl., para. 7, Ex. F].   
      
With respect to ability to comply, or willful disobedience, the declaration indicates that Rosen has a successful law practice, and has been recently retaining lawyers lately to pursue appeals, all of which would appear to be outside the personal knowledge of the declarant.   [Reicheneder Decl., paras. 8, 9].  
The court on this showing will not order an OSC, but it will be discussed at the hearing whether this situation would warrant the court invoking the liberal procedures for permitting amendment of a charging affidavit under CCP section 1211.5:
“The court may order or permit amendment of such affidavit or statement for any defect or insufficiency at any stage of the proceedings, and the trial of the person accused of contempt shall continue as if the affidavit or statement had been originally filed as amended, unless substantial rights of such person accused would be prejudiced thereby, in which event, a reasonable postponement, not longer than the ends of justice require, may be granted.”
CCP § 1211.5 (b). 
Subdivision (c) provides that such an affidavit is not insufficient unless the court finds substantial prejudice, amounting to “miscarriage of justice.”   
It is held that a contempt proceeding should be litigated on its merits and not hindered by technical defects in the initiating documents, so long as the failure of the initiating affidavit did not constitute a miscarriage of justice.   Reliable Enterprises, Inc. v. Superior Court (1984, 2nd Dist.) 158 Cal.App.3d 604, 618.    
The court will consider continuing this proceeding, to permit the moving parties to give notice of ruling, include all required information in an amended declaration, and to permit the declaration and moving papers to be personally served on the accused.     
To the extent the motion seeks sanctions, under CCP §1218 (a):
“Upon the answer and evidence taken, the court or judge shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that he or she is guilty of the contempt, a fine may be imposed on him or her not exceeding one thousand dollars ($1,000), or he or she may be imprisoned not exceeding five days, or both.  In addition, a person who is subject to a court order as a party to the action... who is adjudged guilty of contempt for violating that order may be ordered to pay the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding.”
The issue of sanctions will be deferred until after an appropriate proceeding actually adjudges the accused guilty of contempt for violating its order.  
    
RULING:   
[No opposition]
Respondent Dale Reicheneder’s and Respondent Reicheneder Law Group’s Motion for an OSC re Why Petitioners/Defendants Jonathan C. Rosen, Esq., JCR Law Group, Inc. and Law Offices of Jonathan C. Rosen Should Not be Held in Contempt for Willfully Disobeying the Court’s Order of December 4, 2020 to Pay Costs on Appeal of $1,118.05 Within Thirty Days is DENIED. 
The moving papers have not been personally served on the accused.  Also, there are defects in the charging affidavit.  The Court also finds such a proceeding improper in light of the fact that the subject order is a money judgment fully enforceable pursuant to the enforcement of judgment procedures.  The court is inclined to dismiss the contempt proceeding in favor of respondents obtaining a money judgment and executing on that judgment.
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES 
Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance.  Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00.   Counsel and parties (including self-represented litigants) are encouraged not to personally appear unless they have obtained advance permission of the Court.  Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff.  If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative. 

Case Number: EC064392    Hearing Date: December 04, 2020    Dept: D

TENTATIVE RULING

Calendar: 22

Date: 12/4/20

Case No. EC 064392 Trial Date: None Set

Case Name: Aguilar v. Rosen, et al.

MOTION TO STRIKE OR TAX COSTS

Moving Party: Defendants/Appellants Jonathan C. Rosen, JCR Law Group,

and Law Offices of Jonathan C. Rosen

Responding Party: Plaintiff/Respondent Arturo Aguilar, Respondents Dale Reicheneder

and Reicheneder Law Group

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff Arturo Aguilar brought this action against his former attorney defendant Jonathan C. Rosen, and Rosen's law firms, defendants JCR Law Group, Inc., and Law Offices of Jonathan C. Rosen, alleging that defendants failed to defend plaintiff in an underlying criminal matter with diligence and competence. Specifically, plaintiff alleges that defendants failed to follow up on references to school and inoculation records to establish that at the time of the alleged incident, plaintiff was only eleven years old, not between fifteen and eighteen, and so entitled to have the District Attorney's office prove to the court plaintiff's comprehension and legal understanding of his actions, which under California law does not exist until the age of fourteen. Plaintiff also alleges that defendants failed to follow up to clarify false statements upon which the District Attorney was relying. Plaintiff alleges that defendants failed to visit with plaintiff, communicate progress, or follow up with investigation, but persuaded plaintiff to accept a plea to a false charge, resulting in plaintiff remaining in prison for another year. It is also alleged that defendants then abandoned the matter, but did not legally withdraw as counsel, and have failed to communicate with plaintiff.

The file shows that on February 1, 2016, the Court, Judge Doyle presiding, heard a motion to file documents under seal in connection with a demurrer to the complaint, based on defendants’ argument that plaintiff’s case was barred for failure of plaintiff to plead factual innocence, at which time it was discovered that the documents defendants intended to rely upon had been sealed by the juvenile court. After hearing several motions with respect to the issue of the unsealing of those records and permitting continuances to seek relief in the juvenile court, as well as permitting plaintiff leave to amend the pleading, the Court on February 24, 2017 sustained a demurrer to the Second Amended Complaint without leave to amend and ordered the Second Amended Complaint dismissed.

On December 15, 2017, the court heard a motion by defendants for sanctions pursuant to CCP section 128.5 brought against plaintiff and the attorneys for plaintiff in this matter, Dale Reicheneder and Reicheneder Law Group. Defendants argued that plaintiff’s complaint was frivolous, and plaintiff and his counsel engaged in bad faith conduct throughout the litigation. Defendants argues that it was clear throughout the litigation that plaintiff would be unable to establish claims against his former attorney arising out of representation in a criminal matter, because plaintiff could not establish his own actual innocence or that his conviction had been set aside in a manner demonstrating exoneration of the charges, as required under applicable law.

The Court denied the motion, finding that defendants failed to meet the standard for determining the matter to be frivolous, as while the Court had ultimately determined that the factual innocence and post-conviction exoneration elements applied to sealed juvenile proceedings, there was a colorable argument asserted by plaintiff that the elements did not apply to sealed juvenile proceedings, and that there were also attempts being considered with respect to obtaining post-conviction relief throughout the proceeding.

Defendants appealed the Court’s order denying the motion for sanctions.

On March 13, 2020, the Second District filed its unpublished opinion in the matter, affirming the trial court order denying sanctions, and finding no abuse of discretion. The opinion states in the Disposition, “Reicheneder is awarded his costs on appeal.”

On April 3, 2020, the Second District ordered the March 13, 2020 opinion modified, with no change in the judgment, and denied a petition for rehearing.

On April 13, 2020, respondents Reicheneder and Reicheneder Law Group filed a Memorandum of Costs, seeking $1,889.20 in costs.

On April 13, 2020, defendants/appellants filed a motion to strike or tax costs, which did not designate a hearing date.

Evidently, the defendants/appellants filed a petition for writ of review to the California Supreme Court. On July 24, 2020, respondents Reicheneder and Reicheneder Law Group filed a Notice indicating that on July 8, 2020, the California Supreme Court had denied petitioner Jonathan C. Rosen, Esq.’s Petition for Review.

On July 27, 2020, respondents Reicheneder and Reicheneder Law Group filed as Amended Memorandum of Costs, seeking $1,670.00 in costs.

On August 11, 2020, remittitur was filed in this court. The Remittitur states, “Reichender is awarded his costs on appeal.”

ITEMS TO BE STRICKEN:

1) Item 1—Filing Fees ($780)

2) Item 16— Other ($1,071.70)

ANALYSIS:

CRC Rule 8.278, pertaining to an award of costs on appeal, provides in pertinent part:

“(1) Except as provided in this rule, the party prevailing in the Court of Appeal in a civil case other than a juvenile case is entitled to costs on appeal.

(2) The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal. The prevailing party is the appellant if the court reverses the judgment in its entirety.

(3) If the Court of Appeal reverses the judgment in part or modifies it, or if there is more than one notice of appeal, the opinion must specify the award or denial of costs.”

Here, the court of appeal opinion in the disposition specified, “Reicheneder is awarded his costs on appeal.” [Opinion, p. 9]. The Remittitur also specifies “Reicheneder is awarded his costs on appeal.”

Defendants do not dispute that respondents here were prevailing parties, entitled to recoverable costs on appeal.

Defendants instead seek to tax the costs which respondents have claimed as improper or unreasonable.

Where a cost item does not appear proper and necessary on its face, the burden of proof is on the claimant to show the cost is appropriate. Murphy v. F.D. Cornell Co., (1930) 110 Cal. App. 452, 454. If the items appear to be proper charges, the burden is on the party seeking to tax costs to show they were not reasonable or necessary. Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. Where items are properly objected to as not reasonable or necessary, however, they are put in issue and the burden of proof is on the party claiming them as costs. Id. The trial court’s determination on a motion to tax or strike costs will be reversed only for an abuse of discretion. Santantonio v. Westinghouse Broadcasting Co. (1994, 2nd Dist.) 25 Cal.App.4th 102, 121.

As an initial matter, the opposition argues that the motion is essentially moot, since respondents have filed an Amended Memorandum of Costs since the motion to tax or strike costs claimed in the original Memorandum of Cost was filed, and appellants have not timely filed a motion to strike or tax the Amended cost memorandum.

Under CRC Rule 8.278(c)(1):

(1) Within 40 days after the clerk sends notice of issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700.

Here, the remittitur is dated August 11, 2020. It accordingly appears that the Amended Memorandum of Costs, filed and served on July 27, 2020, timely amended the original Memorandum of Costs, superseding it prior to the deadline to file a cost memorandum, which would have been forty days from August 11, 2020, when the remittitur was sent out by the clerk of the court of appeal.

It is not clear why a new motion to tax or strike costs has not been filed, but it appears that this may be in part due to the concession in the amended cost memorandum that filing fees were overstated, although the motion continues to seek costs under “Other,” in a sum slightly exceeding the amount previously sought. The original memorandum sought $1,071.70 (“Appeal Transcript Record (2,544 @ .35/page) + motion to augment (518@ .35/page),” while the Amended memorandum seeks $1,242.50 (“Appeal record, Motion to Augment, Pet. Rehearing, Calif. Sup. Ct, etc. 3,550 pages @ .35/page”).

This will be discussed at the hearing, as is it not clear from the procedural posture here that the motion is not in fact moot, given the filing of the Amended Memorandum of Costs, and the failure to file a motion in response to that cost memorandum, and the court could deny the motion outright on this ground.

Item 1— Filing and motion fees

CRC Rule 8.278(d) lists the recoverable costs on appeal, which include, under subdivision (1)(D):

“(D) The costs to notarize, serve, mail, and file the record, briefs, and other papers…”

Respondents originally sought to recover $780 in this item as set forth in the memorandum of costs. The worksheet shows that Respondent was claiming two filing fees of $390 each, one for Dale Reicheneder and one for Reicheneder Law Group.

Defendants argue that these fees should be taxed because respondents filed only one Respondents’ Brief and did not incur two filing fees.

The Amended Memorandum of Costs seeks only $390 for this item, and the opposition indicates that the second filing fee was in fact sought in error.

The item should be awarded only in the sum of $390, as sought in the Amended Memorandum of Costs.

Item 16— Other

As noted above, respondents originally sought to recover in this item the sum of $1,071.70. The memorandum of costs indicates that these costs are for “Appeal Transcript Record (2,544 @ .35/page) + motion to augment (518@ .35/page).”

The Amended Memorandum seeks $1,242.50 (“Appeal record, Motion to Augment, Pet. Rehearing, Calif. Sup. Ct, etc. 3,550 pages @ .35/page”).

Under CRC Rule 8.278(d), recoverable costs include:

“(B) The amount the party paid for any portion of the record, whether an original or a copy or both.”

Under CRC Rule 8.278 (d) (1)(E), recoverable costs include

“The cost to print and reproduce any brief, including any petition for rehearing or review, answer, or reply…”

Defendants do not argue that the costs are not recoverable, but that they are unreasonable because the appeal transcript record was only 1,236 pages, so that there is no valid claim as to the additional 1,308 pages claimed. Defendants also argue that the motion to augment was actually served on respondents, so they had a copy of it, so it was not reasonable to have incurred expense for further copies. There is also an argument that the entire motion to augment was only 249 pages, not 518 pages, as claimed.

With respect to the appeal transcript, there is no argument that reproduction costs are not allowed, or that $.35 per page was unreasonable. The opposition argues that the $.35 per page is reasonable in light of the court charging $.50 per page for a copy of a record. [Ex. G]. The opposition argues broadly that the Rosen’s attorney did not provide copies of the record, or the motion to augment, and failed to serve respondent Aguilar with anything, and so respondent’s counsel had to have someone go the court of appeal, pull the file, and have copies made, and that there is no articulated standard that limits respondents to only one copy of any document. The opposition submits a declaration of counsel for respondents stating vaguely:

“In addition to the filing fee for Respondents ($390 incurred by Respondents directly) and 4 electronic filing expenses ($37.50 incurred by Respondents directly). I billed my Clients, the following incurred costs: 3,550 pages at .35 per page, totaling $1,242.50 for the file, record on appeal, documents, exhibits etc., including additional copies necessary in conjunction with consultation with other attorneys, incurred to review Petitioner’s / Defendants' Rosens ' filings, prepare and file the Response to Petitioners’/ Defendants' Rosens' Appeal (Opening Brief, Response thereto and Reply); Petitioners'/ Defendants’ Petition for Rehearing; Petitioners'/ Defendants Motion to Augment the Record; Petitioners’/ Defendants’Petition to the California Supreme Court for Review).

[Ex. B, Amended Memorandum of Costs, Attach. 2, Crucillo Decl., para. 2].

There is no submission of invoices showing what copying was done, and what was duplicative, but there appears to be concession “additional” copies were made to give to other attorneys.

It would appear that permitting recovery of the 1,236 pages of the appeal transcript record at $.35 per page would result in recoverable costs of $432.60 for this aspect of the item.

With respect to the motion to augment, it appears that the cost statute permits the cost to reproduce the motion to augment, regardless of whether a copy was served, but does not contemplate multiple copies. The cost should be allowed for the pages the motion indicates were the pages of the motion to augment. Permitting recovery of the 249 pages at $.35 per page would result in additional recoverable costs of $87.15.

It is not explained what the pages had to be copied for the additional documents since the filing of the original memorandum of costs, designated in the Amended Memorandum as the petition for rehearing, and Supreme Court documents, presumably the petition for review. The court could reasonably assume that since the original memorandum sought $1,071.70 for the record on appeal and the motion to augment, and Amended memorandum seeks $1,242.50, that the additional documents are sought at a copying costs in the sum of the difference, or $170.80, which would be 488 pages at $.35 per page. This conclusion appears reasonable. This result would result in total costs for “Other” in the sum of $432.60, plus $87.15, plus $170.80 for a grand total of $690.55. The sum sought of $1,242.50 will accordingly be taxed by $551.95.

RULING:

Motion to Strike or Tax Costs is GRANTED in part as follows:

The Court has considered the motion a challenge to the Amended Memorandum of Costs

Motion to tax Item 1— Filing Fees is MOOT.

The Amended Memorandum seeks only one $390 filing fee for the Respondents’ Brief, which is the sum which will be awarded.

Motion to tax Item 16— Other is GRANTED in part.

Allowable cost for the reproduction and copying of the 1,236 pages of the appeal transcript record at $.35 per page are $432.60. Allowable costs for the reproduction and copying of the motion to augment-- 249 pages at $.35 per page—results in additional recoverable costs of $87.15. The Court also awards the additional sum sought in the Amended Memorandum for copying of the petition for rehearing and petition for review in the Supreme Court in the sum of $170.80 (488 pages at $.35 per page), for a total cost $690.55.

Costs claimed of $1,242.50 are reduced by $551.95 to $690.55.

Total Costs Awarded= (Cost claimed of $1,670.00 less $551.95) $1,118.05.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where JCR Law Group is a litigant

Latest cases represented by Lawyer LEAR EDWARD O. ESQ.