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This case was last updated from Los Angeles County Superior Courts on 06/19/2019 at 15:02:21 (UTC).

JILLIAN MICHAELS, ET AL., VS GREENBERG TRAURIG, LLP, ET AL.,

Case Summary

On 07/07/2016 JILLIAN MICHAELS, filed a Contract - Professional Negligence lawsuit against GREENBERG TRAURIG, LLP, . This case was filed in Los Angeles County Superior Courts, Santa Monica Courthouse located in Los Angeles, California. The Judge overseeing this case is MITCHELL L. BECKLOFF. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6100

  • Filing Date:

    07/07/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Professional Negligence

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Santa Monica Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MITCHELL L. BECKLOFF

 

Party Details

Plaintiffs

MICHAELS JILLIAN

EMPOWERED MEDIA LLC

Defendants

GREENBERG TRAURIG LLP

MARKMAN DAVID P.

Cross Defendants

BASIC RESEARCH

THINCARE INTERNATIONAL

Attorney/Law Firm Details

Plaintiff Attorneys

FITZGERALD JACK

KING & BALLOW

TRECHSEL FRANK RINARD

Defendant Attorneys

SPIRA KIRSTEN HICKS

VAN HOESEN ANNAMARIE HAYASE

JENNER & BLOCK

 

Court Documents

Proof of Service (not Summons and Complaint)

9/16/2016: Proof of Service (not Summons and Complaint)

Unknown

9/27/2016: Unknown

Unknown

2/1/2017: Unknown

Unknown

2/2/2017: Unknown

Minute Order

2/24/2017: Minute Order

Case Management Statement

5/17/2017: Case Management Statement

Answer

5/19/2017: Answer

Answer

5/19/2017: Answer

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

6/2/2017: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Proof of Service (not Summons and Complaint)

12/12/2017: Proof of Service (not Summons and Complaint)

Unknown

12/20/2017: Unknown

Opposition

10/23/2018: Opposition

Declaration

11/6/2018: Declaration

Declaration

11/6/2018: Declaration

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

11/20/2018: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Request for Judicial Notice

1/17/2019: Request for Judicial Notice

Notice

1/17/2019: Notice

Proof of Service (not Summons and Complaint)

1/17/2019: Proof of Service (not Summons and Complaint)

206 More Documents Available

 

Docket Entries

  • 05/31/2019
  • Notice (of withdrawal of attorney Frank R. Trechsel); Filed by Jillian Michaels (Plaintiff); Empowered Media, LLC (Plaintiff)

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  • 04/26/2019
  • at 08:30 AM in Department M; Hearing on Motion to Bifurcate - Not Held - Taken Off Calendar by Party

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  • 04/22/2019
  • at 09:00 AM in Department M; Jury Trial - Not Held - Continued - Court's Motion

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  • 04/12/2019
  • at 09:00 AM in Department M; Final Status Conference - Not Held - Continued - Party's Motion

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  • 03/08/2019
  • at 08:30 AM in Department M; Hearing on Motion to Bifurcate - Not Held - Rescheduled by Party

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  • 02/19/2019
  • Proof of Service by Mail; Filed by Greenberg Traurig, LLP (Defendant); David P. Markman (Defendant)

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  • 02/19/2019
  • Notice (Notice of Entry of Nunc Pro Tunc Order Correcting The Minute Order of 01/31/2019); Filed by Greenberg Traurig, LLP (Defendant); David P. Markman (Defendant)

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  • 02/11/2019
  • Notice (Notice Of Entry Of Order); Filed by Greenberg Traurig, LLP (Defendant); David P. Markman (Defendant)

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  • 02/11/2019
  • Proof of Service by Mail; Filed by Greenberg Traurig, LLP (Defendant); David P. Markman (Defendant)

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  • 02/07/2019
  • at 08:30 AM in Department M; Hearing on Motion to be Admitted Pro Hac Vice - Not Held - Taken Off Calendar by Party

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410 More Docket Entries
  • 09/16/2016
  • Declaration; Filed by Greenberg Traurig, LLP (Defendant); David P. Markman (Defendant)

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  • 09/16/2016
  • Demurrer; Filed by Greenberg Traurig, LLP (Defendant); David P. Markman (Defendant)

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  • 09/16/2016
  • Motion to Strike; Filed by Attorney for Defendant

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  • 09/16/2016
  • Proof of Service; Filed by Attorney for Defendant

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  • 09/16/2016
  • Proof of Service (not Summons and Complaint); Filed by Greenberg Traurig, LLP (Defendant); David P. Markman (Defendant)

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  • 07/07/2016
  • Complaint Filed

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  • 07/07/2016
  • Civil Case Cover Sheet

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  • 07/07/2016
  • Complaint; Filed by Jillian Michaels (Plaintiff); Empowered Media, LLC (Plaintiff)

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  • 07/07/2016
  • Summons; Filed by Plaintiff

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  • 07/07/2016
  • Summons Filed; Filed by Attorney for Plaintiff

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Tentative Rulings

Case Number: SC126100    Hearing Date: November 20, 2020    Dept: M

CASE NAME: Jillian Michaels, et al v. Greenber Traurig, LLP, et al.

CASE NO.: SC126100

MOTION: Plaintiffs’ Motion to Strike or Tax Costs

Hearing: 11/20/2020

Background

Plaintiffs Jillian Michaels and Empowered Media, LLC move to strike, or in the alternative, tax Defendants Greenberg Traurig and David P. Markman’s (“Defendants”) request for costs on the grounds that Defendants request is untimely and seeks to recover costs not permitted. Plaintiffs argue that the costs memorandum is untimely.

On September 10, 2019, Defendants served a notice of entry of Defendants’ request for dismissal of the cross-complaint by overnight mail. (See 9/16/2019 Notice of entry of dismissal.) On September 27, 2019 Defendants filed and served their memorandum of costs and memorandum worksheet by U.S. mail. (See 09/27/2019 Proof of Service.) Defendants seek $42,632.38 in costs. (See 09/27/2019 Memo at 1.)

On October 16, 2019, Plaintiffs filed their motion to tax costs. On November 5, 2020, the Court continued the hearing on the motion and had the parties submit briefs by November 12, 2020.

Legal standard

A prevailing party in litigation may recover costs, including but not limited to filing fees. (Code Civ. Proc., §1033.5(a)(1).) “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after [1] the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or [2] the date of service of written notice of entry of judgment or dismissal, or [3] within 180 days after entry of judgment, whichever is first.” (CA Rules of Court, Rule 3.1700(a).)

Under Code of Civil Procedure section 1033.5(c)(2), allowable costs are only recoverable if they are “reasonably necessary to the conduct of the litigation.” Even mandatory costs, when incurred unnecessarily, are subject to section 1033(c)(2). (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.) Section 1033.5(c)(4) provides that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc., §1033.5(c)(4).)

Under California Rules of Court Rule 3.1700, a party may file and serve a motion to tax costs listed in a memorandum of costs.(See CRC Rule 3.1700(b).) Under Rule 3.1700(b)(1), “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).”

A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred. (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.) A party seeking to tax costs must provide evidence to rebut this prima facie showing. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. (Id.)

Analysis

Whether the cost memorandum is timely

“The time provisions relating to the filing of a memorandum of costs, while not jurisdictional, are mandatory.” (Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 426 [quoting Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929].)

Code of Civil Procedure section 1013(c) provides, as to service by overnight mail, “Service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document served by Express Mail or other method of delivery providing for overnight delivery shall be extended by two court days. The extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal. This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court.” (Code Civ. Proc., §1013(c).)

Plaintiffs argue that the extension provided in Code of Civil Procedure section 1013 only applies to the persons or parties served and not to the parties serving the documents. (See generally Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc (2000) 85 Cal.App.4th 1042, 1048 [“Westrec”]). In Westrec, the Court of Appeal recognized that there was an ambiguity as to whether Code of Civil Procedure section 1013(a) applied “to any deadline that starts with service by mail” or “the section only to the person served by mail.” (Westrec, supra, (2000) 85 Cal.App.4th at 1048.). The Court saw that both interpretations were possible and proceeded to analyze the legislative history of section 1013(a). After going through the legislative history, the Court founds “that extension of time applies only to the party served.” (Id. at 1049.)

The Westerc decision is based out of the Fourth District Court of Appeal. This Court sits in the Second District. In Kahn v. The Dewey Group, the Second District Court of Appeal stated, "we do not agree with the Westrec court that the language of either section 1013 or section 1010.6 is ambiguous or is reasonably susceptible of that court's interpretation. As we have said, section 1010.6, subdivision (a)(4)–like section 1013, subdivision (a)–extends by a specified number of days ‘any any any Kahn v. The Dewey Group The language of section 1010.6, which provides a two-court-day extension for documents served by electronic mail, is functionally the equivalent as section 1013, which provides a two-day extension for documents served by express mail. While the Kahn Court was interpreting section 1010.6, the analysis and reasoning provided by the Kahn Court is directly applicable to section 1013(c) and compels the Court to conclude that the two-day extension of time applies to both the party being served and the party serving the documents.

Here, Defendants Greenberg Traurig and David P. Markman filed and served the entry of dismissal and also filed and served the costs memorandum. The notice of entry of Defendants’ request for dismissal filed with the Court on September 16, 2019 indicates that notice was served by overnight mail on September 10, 2019. Since Defendants were the ones that served the notice, they had 15 days from the date of service to file a memorandum of costs, plus an additional two court days under section 1013. Fifteen days after service was on Wednesday, September 25, 2019. Defendants served their cost memorandum on Friday, September 27, 2019 and thus with the additional two days pursuant to section 1013, the costs memorandum is timely.

Moreover, to the extent that the Court’s analysis of Kahn and its application to section 1013(c) is incorrect, the Court would exercise its discretion to permit the late filing of this motion in light of the lack of prejudice to Plaintiffs. (See Hoover Community Hotel Development Corp. v. Thomson, (1985) 168 Cal. App. 3d 485, 487–88.)

Individual items

Plaintiffs seek to tax the following four items: (1) Attachment 1g “Filing” Fees - $4,919.23; (2) Attachment 4e – Depositions - $32,510.04; (3) Attachment 5d – Process Server Costs - $1,281.59; and (4) Attachment 16 – Travel for Depositions - $3,921.52.

  1. Attachment 1g - $799.31

Plaintiffs argue that as to Attachment 1g, costs related to courtesy copies not ordered by the Court are not permitted by Code of Civil Procedure section 1033.5(a)(14). Plaintiffs seek to tax $799.31 of the $4,919.23 claimed. That section provides that costs are allowable for “[f]ees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.” (Code Civ. Proc., §1033.5(a)(14).) Defendant argue that the Court has discretion to award such costs under section 1033.5(c)(4). The Court will exercise its discretion and allow Defendants’ costs for courtesy copies. Therefore, the motion to tax these costs is denied.

  1. Depositions

Plaintiffs argue that the listed $32,510.04 in deposition costs in the memorandum is insufficient to show that these costs were reasonably necessary to the conduct of the litigation. Section 1033.5(a)(3)(A) allows for costs associated with “[t]aking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed.” (Code Civ. Proc., §1033.5(a)(3)(A).) In opposition, Defendants provided the invoices and argue that they are entitled to these costs under Code of Civil Procedure section 1033.5(a)(3)(A). (See Spira Decl. Ex. C.). Defendants also included attachment 4e with their memorandum of costs, which contains the deposition costs associated with each deponent. (See attachment 4e to Costs Memo.). In reply, Plaintiffs argue that the “professional attendance” fees included in the invoices for the depositions are improper, including $95.00 for the deposition of Gina Daines and $370.00 for the deposition of Raymond Cole. The court agrees that these fees are unclear and reduces the costs for the depositions from $32,510.04 to $32,045.04.

  1. Process Server Costs

Defendants claim a total of $1,281.59 in service of process costs. Defendants, as the prevailing party are entitled to costs associated with “[s]ervice of process by a public officer, registered process server, or other means, as follows . . . If service is by a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code, the recoverable cost is the amount actually incurred in effecting service, including, but not limited to, a stakeout or other means employed in locating the person to be served, unless those charges are successfully challenged by a party to the action.” Plaintiffs sought to tax these costs but abandoned the argument on reply. Since a verified costs memorandum is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred, and since Plaintiffs have failed to provide evidence or arguments as to why these costs should be taxed, the motion to tax this cost is denied.

  1. Travel for Depositions

Code of Civil Procedure section 1033.5(a)(3)(C)provides for “[t]ravel expenses to attend depositions.” In reply, Plaintiffs argue that $749 per night is not a reasonable hotel rate. The $749 rate is for a hotel in Miami and Plaintiffs provide no evidence to support their contention that this fee is unreasonably high. In reply, Plaintiffs also argue that tips, while courteous and often appropriate are not reasonably necessary to the conduct of litigation. The tips were travel expenses and are therefore recoverable under section 1033.5(a)(3)(C). The motion to tax this cost is denied.

For these reasons, the motion to tax costs is granted in part, and denied in part.

Case Number: SC126100    Hearing Date: November 05, 2020    Dept: M

CASE NAME: Jillian Michaels, et al v. Greenber Traurig, LLP, et al.

CASE NO.: SC126100

MOTION: Plaintiffs’ Motion to Strike or Tax Costs

Hearing: 11/5/2020

Background

Plaintiffs Jillian Michaels and Empowered Media, LLC move to strike, or in the alternative, tax defendants Greenberg Traurig and David P. Markman’s (“Defendants”) request for costs on the grounds that Defendants request is untimely and seeks to recover costs not permitted. On September 10, 2019, Defendants served a notice of entry of Defendants’ request for dismissal of the cross-complaint by overnight mail. (See 9/16/2019 Notice of entry of dismissal.) On September 27, 2019 Defendants filed and served their memorandum of costs and memorandum worksheet by U.S. mail. (See 09/27/2019 Proof of Service.) Defendants seek $42,632.38 in costs. (See 09/27/2019 Memo at 1.)

On October 16, 2019, Plaintiffs filed their motion to tax costs.

Legal standard

A prevailing party in litigation may recover costs, including but not limited to filing fees. (Code Civ. Proc., §1033.5(a)(1).) “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after [1] the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or [2] the date of service of written notice of entry of judgment or dismissal, or [3] within 180 days after entry of judgment, whichever is first.” (CA Rules of Court, Rule 3.1700(a).)

Under Code of Civil Procedure section 1033.5(c)(2), allowable costs are only recoverable if they are “reasonably necessary to the conduct of the litigation.” Even mandatory costs, when incurred unnecessarily, are subject to section 1033(c)(2). (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.) Section 1033.5(c)(4) provides that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc., §1033.5(c)(4).)

Under California Rules of Court Rule 3.1700, a party may file and serve a motion to tax costs listed in a memorandum of costs. (See CRC Rule 3.1700(b).) Under Rule 3.1700(b)(1), “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).”

A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred. (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.) A party seeking to tax costs must provide evidence to rebut this prima facie showing. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. (Id.)

Analysis

“The time provisions relating to the filing of a memorandum of costs, while not jurisdictional, are mandatory.” (Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 426 [quoting Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929].)

Here, the notice of entry of Defendants’ request for dismissal filed with the Court on September 16, 2019 indicates that notice was served by overnight mail on September 10, 2019. Since Defendants were the ones that served the notice, they had 15 days from the date of service to file a memorandum of costs. Fifteen days after service was on Wednesday, September 25, 2019. However, Defendants served their cost memorandum on Friday, September 27, 2019.

Code of Civil Procedure section 1013(c) provides, as to service by overnight mail, “Service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document served by Express Mail or other method of delivery providing for overnight delivery shall be extended by two court days. The extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal. This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court.” (Code Civ. Proc., §1033.5(c).)

Plaintiffs argue that the extension provided in Code of Civil Procedure section 1013 only applies to the persons or parties served and not to the parties serving the documents. (See generally Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc (2000) 85 Cal.App.4th 1042, 1048). In opposition, Defendants argues that Plaintiffs ignore the plain language of the statute providing for a two-day extension relying upon Nevis Homes LLC v. CW Roofing, Inc. (2013) 216 Cal.App.4th 353.)

In Nevis Homes, the Court of Appeal held that the extensions provided by Code of Civil Procedure section 1013 applied to a memorandum of costs. (Nevis Homes, 216 Cal.App.4th at 357.) In that case, the parties disputed whether section 1013 applied because California Rules of Court, Rule 3.1700(a)(1) was silent on section 1013 but Rule 3.1700(b)(1) mentioned section 1013. (Id. at 356-357.) However, the facts of Nevis Homes are distinguishable from our facts. In Nevis Homes, one party mailed and served the entry of dismissal (Nevis) and the other party (CW Roofing, Inc. or CWRI) filed and served their cost memorandum. (Id. at 355.).

In Westrec, the Court of Appeal recognized that there was an ambiguity as to whether Code of Civil Procedure section 1013(a) applied “to any deadline that starts with service by mail” or “only to the person served by mail.” (Westrec, supra, (2000) 85 Cal.App.4th at 1048.). The Court saw that both interpretations were possible and proceeded to analyze the legislative history of section 1013(a). After going through the legislative history, the Court founds “that extension of time applies only to the party served.” (Id. at 1049.)

Here, Defendants Greenberg Traurig and David P. Markman filed and served the entry of dismissal and also filed and served the costs memorandum. Therefore, the 2-day extension does not apply, and as a result, Defendants’ memorandum of costs is untimely. The motion to strike Defendants’ Memorandum of Costs is GRANTED.

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