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This case was last updated from Los Angeles County Superior Courts on 12/21/2020 at 13:49:41 (UTC).

ROBERT MCKENNA ET AL VS DAVID DAVIES ET AL

Case Summary

On 12/17/2010 ROBERT MCKENNA filed a Contract - Debt Collection lawsuit against DAVID DAVIES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MATTHEW ST. GEORGE, RUPERT A. BYRDSONG and ELAINE LU. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1589

  • Filing Date:

    12/17/2010

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Debt Collection

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MATTHEW ST. GEORGE

RUPERT A. BYRDSONG

ELAINE LU

 

Party Details

Plaintiffs

MCKENNA DAWN

MCKENNA ROBERT

Defendants

DAVIES DAVID

DOES 1 THROUGH 50

LIMER NICHOLAS

Attorney/Law Firm Details

Plaintiff Attorneys

SLATES RONALD P. ESQ.

SLATES RONALD PERCY ESQ.

 

Court Documents

Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

1/13/2020: Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

Application for and Renewal of Judgment

1/13/2020: Application for and Renewal of Judgment

Notice - NOTICE NOTICE OF RENEWAL OF JUDGMENT

1/14/2020: Notice - NOTICE NOTICE OF RENEWAL OF JUDGMENT

Motion to Tax Costs

2/13/2020: Motion to Tax Costs

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/24/2020

4/24/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/24/2020

Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

4/27/2020: Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

Opposition - OPPOSITION PLAINTIFF'S MEMORANDUM IN OPPOSITION TO MOTION TO TAX COSTS; DECLARATION OF DAWN MCKENNA

5/7/2020: Opposition - OPPOSITION PLAINTIFF'S MEMORANDUM IN OPPOSITION TO MOTION TO TAX COSTS; DECLARATION OF DAWN MCKENNA

Notice of Case Reassignment and Order for Plaintiff to Give Notice

10/8/2020: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice Re: Continuance of Hearing and Order

10/13/2020: Notice Re: Continuance of Hearing and Order

Certificate of Mailing for - CERTIFICATE OF MAILING FOR [NOTICE OF CASE REASSIGNMENT AND ORDER FOR PLAINTIFF TO GIVE NOTICE]

10/19/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [NOTICE OF CASE REASSIGNMENT AND ORDER FOR PLAINTIFF TO GIVE NOTICE]

Notice - NOTICE OF MINUTE ORDER - MINUTE ORDER (HEARING ON MOTION TO TAX COSTS MOTION OF DEFENDANT DAVID DAVIES ET AL)

12/8/2020: Notice - NOTICE OF MINUTE ORDER - MINUTE ORDER (HEARING ON MOTION TO TAX COSTS MOTION OF DEFENDANT DAVID DAVIES ET AL)

NOTICE OF MOTION AND MOTION FOR CHARGING ORDERS AND TURNOVER ORDERS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF GERALD 1. ZACK

8/19/2011: NOTICE OF MOTION AND MOTION FOR CHARGING ORDERS AND TURNOVER ORDERS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF GERALD 1. ZACK

ORDER GRANTING MOTION FOR CHARGING ORDERS AND MOTION FOR TURNOVER ORDERS MOTION

12/5/2011: ORDER GRANTING MOTION FOR CHARGING ORDERS AND MOTION FOR TURNOVER ORDERS MOTION

ORDER GRANTING MOTION FOR CHARGING ORDERS AND MOTION FOR TURNOVER ORDERS, IN PART

12/5/2011: ORDER GRANTING MOTION FOR CHARGING ORDERS AND MOTION FOR TURNOVER ORDERS, IN PART

17 More Documents Available

 

Docket Entries

  • 01/04/2021
  • Hearing01/04/2021 at 08:30 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Tax Costs

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  • 12/08/2020
  • DocketNotice (of Minute Order - Minute Order (Hearing on Motion To Tax Costs Motion of Defendant David Davies et al)); Filed by Robert McKenna (Plaintiff); Dawn McKenna (Plaintiff)

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  • 12/07/2020
  • Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion to Tax Costs (MOTION OF DEFENDANT DAVID DAVIES TO TAX COSTS) - Not Held - Continued - Court's Motion

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  • 12/07/2020
  • DocketMinute Order ( (Hearing on Motion to Tax Costs MOTION OF DEFENDANT DAVID DAVI...)); Filed by Clerk

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  • 10/28/2020
  • Docketat 1:30 PM in Department 42; Hearing on Motion to Tax Costs - Not Held - Rescheduled by Court

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  • 10/20/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 10/19/2020
  • DocketCertificate of Mailing for ([Notice of Case Reassignment and Order for Plaintiff to Give Notice]); Filed by Clerk

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  • 10/13/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 10/08/2020
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 09/21/2020
  • DocketNotice (NOTICE OF SUSPENSION); Filed by David Davies (Defendant)

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28 More Docket Entries
  • 07/29/2011
  • DocketWrit issued; Filed by Clerk

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  • 07/29/2011
  • DocketWrit issued; Filed by Clerk

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  • 07/01/2011
  • DocketCost Bill After Judgment; Filed by Plaintiff/Petitioner

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  • 07/01/2011
  • DocketMEMORANDUM OF COSTS AFTER JUDGMENT, ACKNOWLEDGMENT OF CREDIT, AND DECLARATION OF ACCRUED INTEREST

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  • 01/03/2011
  • DocketJudgment; Filed by Robert McKenna (Plaintiff); Dawn McKenna (Plaintiff)

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  • 01/03/2011
  • DocketSTIPULATED JUDGMENT; AND ORDER THEREON

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  • 01/03/2011
  • DocketSTIPULATED JUDGMENT; AND ORDER THEREON

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  • 12/17/2010
  • DocketComplaint; Filed by Robert McKenna (Plaintiff); Dawn McKenna (Plaintiff)

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  • 12/17/2010
  • DocketCOMPLAINT FOR BREACH OF CONTRACT; MONEY HAD AND RECEIVED; ACCOUNT STATED; UNJUST ENRICHMENT

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  • 12/17/2010
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC451589    Hearing Date: January 04, 2021    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

ROBERT mckenna; and DAWN MCKENNA

Plaintiffs,

v.

david davies; NICHOLAS LIMER; et al.

Defendants.

Case No.: BC451589

Hearing Date: January 4, 2021

[TENTATIVE] order RE:

David Davies’s motion TO TAX costs

Background

On December 17, 2010, Judgment Creditors Robert McKenna and Dawn McKenna (“Judgment Creditors”) filed this action asserting breach of contract, money had and received, account stated, and unjust enrichment causes of action against David Davies (“Davies”) and Nicholas Limer (“Limer”) arising out of a contract involving the purchase of property in Koloa, Hawaii. On January 3, 2011, the parties stipulated to entry of judgment in favor of Judgment Creditors and against Davies and Limer (collectively, “Judgment Debtors”) in the amount of $1,126,838.42 (principal), $10,000 (attorney’s fees), and $355.00 (costs), for a total of $1,137,193.42. (Order 1/3/11.) On January 13, 2020, Judgment Creditors filed an application for renewal of judgment and a memorandum of costs after judgment, acknowledgment of credit, and declaration of accrued interest.

On February 13, 2020, Judgment Debtor Davies filed the instant motion to tax costs. On May 7, 2020, Judgment Creditors filed an opposition. On April 24, 2020, the instant motion was continued from May 20, 2020 to October 28, 2020. (Minute Order 4/24/20.) On October 13, 2020, the court continued the instant hearing for the motion to December 7, 2020.

Because Judgment Creditors failed to file proof of service of notice of the continued, December 7, 2020 hearing date, on December 7, 2020, the court continued the motion and ordered the Judgment Creditor give notice to Judgment Debtor Davies at his address and his counsel’s address. On December 8, 2020, Judgment Creditors filed proof of service reflecting service of notice of the continued, January 4, 2021 hearing date to both addresses. No reply has been filed.

Request for Judicial Notice

Judgment Creditors request that the court take judicial notice of:

  1. The Complaint filed in this action on December 17, 2010;

  2. Stipulated Judgment; and Order Thereon entered in this action on January 3, 2011;

  3. Order Granting Motion for Charging Orders and Motion for Turnover Orders entered in this action on December 5, 2011;

  4. Printout of assessor records from the government web site of the County of Kauai, State of Hawaii, regarding Poipu Aina Estates Lot 4, Unit D;

  5. Map of Poipu Aina Estates Lot 4, Unit D, and surrounding property from the government web site of the County of Kauai, State of Hawaii; and

  6. Recommendation of Summary Disbarment filed July 22, 2016, in In re Richard Brizendine, No. 14-C-06323 (Cal. Bar Court).

As the court may take judicial notice of its own record and records of other courts and the state, (See Evid. Code, § 452(c), (d), (e)), Judgment Creditors’ request for judicial notice is granted. However, the Court cannot take judicial notice of the truth of the matter assertions within. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Legal Standard

Code of Civil Procedure section 1033.5 sets forth the costs recoverable by the prevailing party. To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (l992) 4 Cal.App.4th 238, 244.) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Id.)

California Rule of Court, Rule 3.1700 requires that “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” by up to 20 days. (Cal. Rules of Court, Rule 3.1700(b)(1).) Additionally, “[T]he court may extend the times for serving and filing the cost memorandum or the notice of motion or tax costs for a period not to exceed 30 days.” (Cal. Rules of Court, Rule 3.1700(b)(3).)

For post-judgment costs made in enforcing a judgment, costs are recoverable pursuant to Code of Civil Procedure § 685.070.  “Within 10 days after the memorandum of costs is served on the judgment debtor, the judgment debtor may apply to the court on noticed motion to have the costs taxed by the court. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. The court shall make an order allowing or disallowing the costs to the extent justified under the circumstances of the case.” (CCP § 685.070(c).) “If no motion to tax costs is made within the time provided in subdivision (c), the costs claimed in the memorandum are allowed.” (Id. at (d).) “There are no exceptions to this rule, and the language of subdivision (d) is mandatory.” (Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125, 146.)

Discussion

Judgment Debtor Davies moves to tax cost on the grounds that Judgment Debtor Davies has paid $1,000,000.00 toward satisfaction of the judgment. As an initial matter, the court notes that Judgment Debtor Davies denominates the instant motion as one to tax costs under Code of Civil Procedure section 1033.5. However, motions to tax brought pursuant to Code of Civil Procedure section 1033.5 are applicable only to tax a memorandum of costs filed for costs after prevailing in the underlying action. By contrast, costs incurred in enforcing a judgment are awarded pursuant to Code of Civil Procedure § 685.070, and a motion to tax costs identified in such a memorandum of costs is brought pursuant to Code of Civil Procedure § 685.070(c).

Untimeliness of the Instant Motion as a Motion to Tax Costs after Judgment

Here, the memorandum of costs was filed for costs after judgment pursuant to Code of Civil Procedure § 685.070. This is clearly indicated on the form, Judicial Counsel Form MC-012, itself, which further specifies to the Judgment Debtor that a motion to tax cost must be filed within 10 days after service. Here, the proof of service filed on January 27, 2020, indicates service on January 27, 2020. Thus, the instant motion to tax costs filed on February 13, 2020 is untimely and must be denied as pursuant to Code of Civil Procedure § 685.070(c). (See Lucky United Properties Investment, Inc, supra, 185 Cal.App.4th at p.146.)

As a Motion to Compel Acknowledgment of Satisfaction of Judgment

Even if the court were to consider the instant motion as one to compel acknowledgment of satisfaction of judgment, the instant motion still fails. Judgment Debtor Davies fails to show that the judgment was satisfied. Instead, Judgment Debtor Davies provides only a conclusory declaration. Specifically, Judgment Debtor Davies states in full that “[t]his action was filed against me and my partner Nicholas Limer in 2011. In late 2011 or early 2012, I paid Plaintiffs $ 1,000,000 to resolve the case. My attorney at the time was Richard Brizen Kine of the law firm Brizendine, Evans and Silver. Mr. Brizendine handled the settlement for me. I telephoned his law firm but was told that Mr. Brizendine was no longer with the firm and that due to the age of the file, they no longer have it.” (Davies Decl. ¶ 2.)

Judgment Creditors dispute Judgment Debtor’s assertion regarding having made a $1,000,000 payment. Judgment Creditors state that they have never been paid. Nor has a demand ever been served as required pursuant to Code of Civil Procedure § 724.050. (McKenny Decl. ¶ 10.) Judgment Debtor Davies fails to present any evidence to corroborate his conclusory statement that he made a $1,000,000 payment in 2012, such as bank records or a copy of a cancelled check. Nor does Judgment Debtor Davies describe how the payment was made, for example, by check, payable to whom, and to whom did Judgment Debtor Davies deliver the check. Because Judgment Debtor Davies fails to present sufficient evidence of ever making any payment, consideration of his motion as one to compel acknowledgment of satisfaction of judgment would nonetheless lead to the same outcome, i.e., a denial of this motion.

CONCLUSION AND ORDER

Based on the forgoing, Judgment Debtor David Davies’ motion to tax costs is DENIED.

Judgment Creditors are ordered to provide notice of this order and file proof of service of such.

DATED: January 4, 2021 ___________________________

Elaine Lu

Judge of the Superior Court

Case Number: BC451589    Hearing Date: December 07, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Background

On December 17, 2010, Judgment Creditors Robert McKenna and Dawn McKenna (“Judgment Creditors”) filed this action asserting breach of contract, money had and received, account stated, and unjust enrichment causes of action against David Davies (“Davies”) and Nicholas Limer (“Limer”) arising out of a contract involving the purchase of property in Koloa, Hawaii. On January 3, 2011, the parties stipulated to entry of judgment in favor of Judgment Creditors and against Davies and Limer (collectively, “Judgment Debtors”) in the amount of $1,126,838.42 (principal), $10,000 (attorney’s fees), and $355.00 (costs), for a total of $1,137,193.42. (Order 1/3/11.) On January 13, 2020, Judgment Creditors filed an application for renewal of judgment and a memorandum of costs after judgment, acknowledgment of credit, and declaration of accrued interest.

On February 13, 2020, Judgment Debtor Davies filed the instant motion to tax costs. On May 7, 2020, Judgment Creditors filed an opposition. On April 24, 2020, the instant motion was continued from May 20, 2020 to October 28, 2020. (Minute Order 4/24/20.) On October 13, 2020, the court continued the instant hearing for the motion to December 7, 2020. The court gave notice of its October 13, 2020 minute order to Plaintiffs and ordered Plaintiffs to give notice. However, Plaintiffs have failed to file any proof of service of notice of the December 7, 2020 hearing date on Judgment Debtor Davies. Accordingly, Plaintiffs must file proof of service of notice of the December 7, 2020 hearing date on Judgment Debtor Davies prior to the commencement of December 7, 2020 hearing. Otherwise, the hearing will have to be continued for inadequate notice.

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