On 08/20/2013 PARVIN JAMALI filed a Contract - Business lawsuit against BANK OF AMERICA HOME LOANS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JOANNE O'DONNELL, MICHELLE R. ROSENBLATT, DANIEL J. BUCKLEY and DAVID SOTELO. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MICHELLE R. ROSENBLATT
DANIEL J. BUCKLEY
BANK OF AMERICA HOME LOANS
BANK OF NEW YORK MELLON
BANK OF NEW YORK THE
CHL MORTGAGE PASS-THROUGH TRUST 2007-HY4
DOES 1 - 20
MARTINGALE INVESTMENTS LLC
RECONTRUST COMPANY N.A.
BANK OF AMERICA ET AL.
NATIONWIDE LEGAL LLC
ROYSTON GREGORY LAW OFFICE OF
ROYSTON GREGORY THOMAS
CHANDRA SAM ESQ.
REED SMITH LLP
RAFFI L. KASSABIAN
SANDELMANN FRANK ESQ.
1/29/2018: Minute Order
2/2/2018: OPPOSITION TO MARTINGALE INVESTMENTS EX PARTE FOR ISSUANCE OF AN OSC OR ANY OTHER EX PARTE RELIEF (LACK OF EXIGENCY) (NOT ENTITLED TO RELIEF).
2/27/2018: OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION TO STRIKE HEARING DATE FOR MOTION FOR SUMMARY JUDGMENT AND TO SEVER AND BIFURCATE BC518965
5/17/2018: NOTICE OF APPEAL
8/20/2013: VERIFIED COMPLAINT (1) QUITE TITLE (2) WRONGFUL FORECLOSURE (3)CANCELATION OF INSTRUMENT (4)ELDER ABUSE
8/23/2013: EXPARTE APPLICATION FOR AN (1) ORDER TRANSFERRING LIMITED UNLAWFUL DETAINER CASE PENDING IN SANTA MONICA COURTHOUSE TO THIS COURTHOUSE AND (2) ORDERING IT
10/28/2013: NOTICE OF PLAINTIFF JAMALI LODGING OF EXHIBITS SOUGHT TO BE TAKEN JUDICIAL NOTICE OF IN SUPPORT OF EXPARTE APPLICATION OF OCTOBER 28, 2013, AND ETC
11/14/2013: EX PARTE APPLICATION (AND OPPOSITION TO THE EXPARTE OF MARTINGAE INVESTMENT, LLC OF EVEN DATE) FOR AN ORDER TO (1) LOWER THE AMOUNT OF INTERPLEADER MONIES FROM THAT ORDERED ON OCTOBER 28, 2013 (2) REL
11/26/2013: NOTICE OF OPPOSITION AND OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS; ETC.,
3/7/2014: Minute Order
4/25/2014: NOTICE OF ENTRY OF ORDER AND JUDGMENT IN FAVOR OF MARTINGALE INVESTMENTS, LLC
9/15/2014: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF REPLY TO OPPOSITION TO MOTION TO VACATE DISMISSAL OF CONSOLIDATED MATTER ETC.
10/10/2014: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
11/7/2014: Minute Order
1/21/2015: Minute Order
2/5/2015: Minute Order
5/17/2017: OPPOSITION TO MOTION TO SEVER; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PAYMAN TAHERI, ESQ; EXHIBITS
10/13/2017: DEFENDANT MARTINGALE INVESTMENTS, LLC'S EX PARTE APPLICATION FOR ENTRY OF AN APPROPRIATE ORDER AFTER THE COURT'S MINUTE ORDER DATED 9/15/2017 OR FOR OTHER APPROPRIATE RELIEF
Appeal - Notice of Fees Due for Clerk's Transcript on Appeal (AMENDED); Filed by ClerkRead MoreRead Less
Appeal - Notice of Fees Due for Clerk's Transcript on Appeal; Filed by ClerkRead MoreRead Less
Ntc to Reptr/Mon to Prep Transcrpt; Filed by ClerkRead MoreRead Less
Designation of Record on Appeal; Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Writ of Execution filed; Filed by ClerkRead MoreRead Less
Notice (OF DEFAULT ON APPEAL ); Filed by ClerkRead MoreRead Less
Notice (OF DEFAULT ON APPEAL ); Filed by ClerkRead MoreRead Less
Ntc to Atty re Notice of Appeal; Filed by ClerkRead MoreRead Less
Notice of Designation of Record; Filed by Attorney for Deft/RespntRead MoreRead Less
Notice of Appeal; Filed by Attorney for Deft/RespntRead MoreRead Less
Ex-Parte Application (TO TANSFER CASE PENDING IN STA. MONICA TO STANLEY MOSK COURTHOUSE ); Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Order (ON EX PARTE APPLICATION ); Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
at 08:00 am in Department 1, Daniel J. Buckley, Presiding; Court Order (RE: 08/23/10 EX PARTE APPLICATION) - DeniedRead MoreRead Less
at 08:30 am in Department 86, Joanne O'Donnell, Presiding; Exparte proceeding - DeniedRead MoreRead Less
Ex-Parte Application (for order transferring limited UD case pending in santa monica to central ); Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
ComplaintRead MoreRead Less
Summons (on Complaint); Filed by ClerkRead MoreRead Less
Complaint; Filed by PARVIN JAMALI (Plaintiff)Read MoreRead Less
Civil Case Cover Sheet; Filed by PARVIN JAMALI (Plaintiff)Read MoreRead Less
Notice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
Case Number: BC518965 Hearing Date: August 27, 2020 Dept: 78
BANK OF AMERICA HOME LOANS, AS SUCCESSOR TO COUNTRYWIDE HOME LOANS, INC., et al.
Case No.: BC518965
Hearing Date: August 27, 2020
[TENTATIVE] RULING RE:
PLAINTIFF PARVIN JAMALI’S MOTION TO TAX COSTS CLAIMED BY MARTINGDALE INVESTMENTS, LLC
Plaintiff Parvin Jamali’s Motion to Tax Costs Claimed by Martingdale Investments, LLC is DENIED.
FACTUAL AND PROCEDURAL HISTORY
This is an unlawful detainer action for quiet title and wrongful foreclosure. On August 20, 2013, Jamali filed a Complaint. Jamali’s real property was sold at a foreclosure action and Jamali brought this action pursuant to the Truth in Lending Act (“TILA”). (COA Opinion, 11/13/19.) On March 26, 2018, the Court granted Martingdale Investments, LLC (“Martingdale”)’s Motion for Summary Judgment and awarding Martingdale possession of the property. (Sandelman Decl., ¶ 19.) On May 4, 2018, Martingdale served its Memorandum of Costs in the amount of $6,569.25. (Sandelman Decl., Exh. A.)
On May 17, 2018, Jamali appealed the ruling, and Martingdale cross-appealed the court’s denial of a contempt motion. (Sandelman Decl., ¶ 22.) On November 13, 2019, The Court of Appeal affirmed the trial court’s orders and judgment as to both Jamali and Martingdale’s appeals. (Sandelman Decl., ¶ 23.)
On March 9, 2020, Jamali filed for Chapter 11 bankruptcy. On May 21, 2020, the U.S. Bankruptcy Court issued an order granting Martingdale’s Motion for Relief from Automatic Stay.
On June 9, 2020, Jamali filed the instant Motion to Tax Costs.
On August 14, 2020, Martingdale filed an Opposition.
On August 20, 2020, Jamali filed a Reply.
MOTION TO TAX COSTS
The right to recovery costs of suit is determined by statute.¿(California Code of Civil Procedure § 1032.)¿¿
¿“Code of Civil Procedure section 1032, subdivision (b) , guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’” (Williams v. Chino Valley Independent Fire Dist.¿(2015) 61 Cal.4th 97, 100.).¿¿
“If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Rappenecker v. Sea-Land Service, Inc.¿(1979) 93 Cal.App.3d 256, 266.) Although individual cost items are ordinarily challenged by a motion to tax costs, no cost-item is effectively put in issue by “mere statements” claiming them to be unreasonable. (Ibid.)¿
Here, Jamali argues that Martingdale may not recover any costs because the Memorandum of Costs was late and/or not filed or served. (Motion at p. 4.)
The trial court entered judgment for Martingdale on April 17, 2018, awarding Martingdale its costs pursuant to a memorandum of costs. (Sandelman Decl., ¶ 20; COA Remittitur, p. 17.) Martingdale presents evidence that they filed the Memorandum of Costs on May 4, 2018. (Sandelman Decl., Exh. A.) The Court’s records further reflect that Jamali filed the instant Motion to Tax Costs over two years later on June 9, 2002.
“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after 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 the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (CA Rules of Court, Rule 3.1700(a).)
“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). (CA Rules of Court, Rule 3.1700(a).)
In this case, the Memorandum of Costs appears to have been filed 2 days late. Martingdale contends that it served and filed the Memorandum on May 2, 2020, but the court stamp is dated May 4, 2018. (Sandelman Decl., Exh. A.)
For the judgment in favor of Martingdale, service of the notice of entry of judgment would have been made by mail on April 17, 2018 at the earliest. Code of Civil Procedure section 1013, subdivision (a) states that “in the case of service by mail, ... [s]ervice 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, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California[.]” (CCP, § 1013(a).) California courts have held that this 5-day extension “applies to the time for filing a memorandum of costs.” (Nevis Homes LLC v. CW Roofing, Inc. (2013) 216 Cal.App.4th 353, 356.) “No statute or rule of court “specifically” exempts cost memoranda from the five-day mailing extension in section 1013, subdivision (a). Moreover, section 1013, subdivision (a), specifies the items to which the extension does not apply. A memorandum of costs is not among those exceptions. Nor does rule 3.1700 exempt a cost memorandum from the time extension provided by section 1013, subdivision (a).” (Id. at 357.)
Further, if the parties dispute that notice of entry of judgment was served by mail, then pursuant to Rule 3.1700(a)(1), the Memorandum of Costs would have been due instead within 180 days after entry of judgment, which was entered on April 17, 2018. (CA Rules of Court, Rule 3.1700(a)(1). Accordingly, the Memorandum of Costs was not untimely because it was filed either within the 5-day extension period or within 180 days after entry of judgment.
However, the instant Motion to Tax Costs is excessively untimely. The Motion to Tax Costs was due within 15 days after service of the Memorandum of Costs. (CA Rules of Court, Rule 3.1700(a).) This Motion was filed 2 years late. Jamali contends that she was never served with the Memorandum of Costs, however Martingdale presents evidence of emails dated May 2, 2018 to Jamali’s counsel advising that the Memorandum of Costs of being filed that day, plus a Proof of Service for the Memorandum dated May 2, 2018 showing service on Jamali’s counsel. (Sandelman Decl., Exh. C.) Further, the filing of a notice of appeal does not stay any proceedings to determine the matter of costs and does not prevent the trial court from determining a proper award of attorney fees claimed as costs. (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 369.)
Accordingly, the Court DENIES the Motion to Tax Costs due to gross untimeliness.
Dated: August 27, 2020
Hon. Robert S. Draper
Judge of the Superior Court