Pending - Other Pending
Contract - Other Contract
RANDOLPH A. ROGERS
LISA F. ROSENTHAL
ROSENTHAL LISA FRANCINE
2/26/2018: Minute Order
4/10/2018: NOTICE OF MOTION AND MOTION TO HAVE FACTS DEEMED ADMITTED
5/3/2018: DEFENDANT TREVOR KISH RESPONSE TO MOTION
5/17/2018: Minute Order
5/17/2018: ORDER AFTER HEARING
6/7/2018: DEFENDANT'S ANSWER TO A MOTION FILED ON JAN. 10TH
7/27/2018: NOTICE OF MOTION AND MOTION TO HAVE FACTS DEEMED ADMITTED
8/28/2018: Minute Order
8/28/2018: ORDER AFTER HEARING
8/29/2018: RESPONSE TO A MOTION AND MOTION TO HAVE FACTS DEEMED ADMITTED
10/23/2018: Exhibit List
10/23/2018: Witness List
10/23/2018: Trial Brief
10/24/2018: Minute Order
4/2/2019: Exhibit List
5/10/2019: Minute Order
5/10/2019: Ex Parte Application
5/15/2019: Trial Brief
Docketat 08:30 AM in Department A15, Randolph A. Rogers, Presiding; Non-Jury Trial - Not Held - Continued - Court's Motion[+] Read More [-] Read Less
DocketMinute Order ( (Non-Jury Trial)); Filed by Clerk[+] Read More [-] Read Less
Docketat 08:30 AM in Department A15, Randolph A. Rogers, Presiding; Jury Trial - Not Held - Advanced and Vacated[+] Read More [-] Read Less
Docketat 08:30 AM in Department A15, Randolph A. Rogers, Presiding; Final Status Conference - Held[+] Read More [-] Read Less
DocketMinute Order ( (Final Status Conference)); Filed by Clerk[+] Read More [-] Read Less
DocketExhibit List; Filed by Trevor Kish (Defendant)[+] Read More [-] Read Less
DocketTrial Brief; Filed by Trevor Kish (Defendant)[+] Read More [-] Read Less
DocketWitness List; Filed by Trevor Kish (Defendant)[+] Read More [-] Read Less
Docketat 08:30 AM in Department A15, Randolph A. Rogers, Presiding; Hearing on Ex Parte Application (for continuance of FSC and Trial Dates) - Held - Motion Denied[+] Read More [-] Read Less
DocketEx Parte Application (for continuance of FSC and Trial Dates); Filed by Trevor Kish (Defendant)[+] Read More [-] Read Less
DocketANSWER-CONTRACT[+] Read More [-] Read Less
DocketNotice of Case Assignment; Filed by Clerk[+] Read More [-] Read Less
DocketSummons; Filed by Mitchell Christopher (Plaintiff)[+] Read More [-] Read Less
DocketComplaint filed-Summons Issued; Filed by null[+] Read More [-] Read Less
DocketCIVIL CASE COVER SHEET[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCE[+] Read More [-] Read Less
DocketNotice of Case Management Conference; Filed by Clerk[+] Read More [-] Read Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)[+] Read More [-] Read Less
DocketNOTICE OF CASE ASSIGNMENT[+] Read More [-] Read Less
Case Number: ****7487 Hearing Date: October 29, 2019 Dept: A15
Christopher v. Kish
1. Tentative Ruling
Plaintiff Mitchell Christopher’s motion to tax costs is DENIED as moot. Sanctions are DENIED. Defendant Trevor Kish to give notice.
This breach of contract action arose from allegations that Defendant David Kish failed to follow through with an agreement the parties entered into on July 20, 2017 for Defendant to sell his home located at 2055 Kettering Street, Lancaster, California to Plaintiff Mitchell Christopher for the sum of $180,000.00.
On October 26, 2017, Plaintiff filed the Complaint against Defendant, alleging two causes of action for (1) Breach of Contract; and (2) Specific Performance. Defendant, proceeding pro per, filed his Answer to the Complaint on November 29, 2017.
This action came on for non-jury trial on July 26, 2019, with judgment entered on that date, whereby the Court found in favor of Defendant on the grounds that he never authorized the sale and is not in possession of the Ernest Money Deposit. Defendant was entitled to recover costs in the Court’s ruling.
On September 04, 2019, Defendant filed a memorandum of costs for the amount of $510.00. On September 12, Defendant filed a notice of withdrawal of his memorandum of costs. On September 16, 2019, Plaintiff then filed the instant motion to tax costs. Defendant filed opposition on October 10, 2019, and Plaintiff filed a reply on October 17, 2019.
a. Violation of November 5, 2018 General Order Re Mandatory Electronic Filing for Civil
Counsel for Defendant has failed to provide the Court with courtesy copies of the instant motions. The Court reminds counsel of the General Order of November 05, 2018, mandating attorneys to provide a paper courtesy copy of their motions. Courtesy copies of further filings shall be provided directly to Dept. A-15.
b. Motion to Tax Costs
The right to recover costs is purely statutory. (Murillo v. Fletwood Enters., Inc. (1998) 17 Cal.4th 985, 989.) “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.” (Code Civ. Proc., ; 1032, subd. (b).)
After judgment is entered, the 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, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700(a).) “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 this case.” (Ibid.)
In turn, the losing party may file a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b).) Procedurally, “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” (Ibid.) “Unless the objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” (Cal. Rules of Court, rule 3.1700(b)(2).) “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code of Civ. Proc., ; 1033.5, subd. (c)(2).)
c. Failure to Substitute Counsel
As a preliminary matter, Plaintiff has argued in his reply that Defendant’s opposition motion must be stricken because he is now being represented by counsel, when before he was a pro per litigant in this action and failed to file for a substitution of counsel.
“The main purpose of a substitution of attorneys is that both the court and opposing counsel may know that they are dealing with an attorney who has power to bind the party he purports to represent.” (Carrara v. Carrara (1953) 121 Cal.App.2d 59, 62.) “[T]he attorney's actual authority bears more significance than the substitution document recording it.” (Baker v. Boxx (1991) 226 Cal.App.3d 1303, 1310.) “Where the actual authority of the new or different attorney appears, courts regularly excuse the absence of record of a formal substitution and validate the attorney's acts, particularly where the adverse party has not been misled or otherwise prejudiced.” (Baker, supra, 226 Cal.App.3d at p. 1309, referencing Crocker National Bank v. O'Donnell (1981) 115 Cal.App.3d 264, 268–269, [terming failure to file substitution a “technical objection”]; and Carrara v. Carrara (1953) 121 Cal.App.2d 59, 62, 262 P.2d 591 [irregularity in substitution does not oust jurisdiction].)
While Plaintiff is correct that there is absent in the court record any formal substitution of attorney by Defendant showing that he is now being represented by counsel Marla Martinez, who has represented Defendant in filing his memorandum of costs, the notice of withdrawal, and the opposition to the motion to tax costs. However, this procedural error by Defendant in failing to file a formal substitution of attorney does not warrant striking his opposition, where Plaintiff here has made no showing of prejudice. (See Baker, supra, 226 Cal.App.3d at p. 1305 [holding that a pleading which is filed and served by a new attorney is not void and ineffective to fulfill service of process requirements even though the new attorney has not first filed and served a formal substitution in the absence of prejudice].)
The Court records indicates that, where Defendant filed a memorandum of costs on September 04, 2019, he subsequently filed a notice of withdrawal of that memorandum of costs on September 12, 2019. Plaintiff then filed the instant motion to tax costs on September 16, 2019.
Where Defendant formally withdrew his memorandum of costs 4 days before Plaintiff filed the instant motion to tax the costs therein, the result is that Plaintiff has moved to the costs of a memorandum of costs that was no longer operative at the time the motion was filed.
Accordingly, Plaintiff’s motion is DENIED as moot.
Plaintiff has requested sanctions in the amount of $7,500.00 against Defendant in connection with its motion to tax costs pursuant to Code of Civil Procedure section 128.5. However, because Plaintiff’s motion was moot from its inception, the Court will not consider his request for sanctions.
Likewise, Defendant has requested in his opposition sanctions against Plaintiff in the amount of $7,500.00 pursuant to Section 128.5.
As evidenced by the email from Plaintiff’s counsel sent to Defendant on September 09, 2019, it was demanded that Defendant’s memorandum of costs “be withdrawn immediately” lest Plaintiff file a motion to tax costs and request sanction. (See Exhibit “C” of the moving papers).
Section 128.5 provides that reasonable attorney's fees may be awarded as a sanction against a party who has filed or persisted in the bringing of a frivolous motion in bad faith. The motion is “frivolous” if it is “totally and completely without merit” or filed “for the sole purpose of harassing an opposing party.” (Code Civ. Proc., ; 128.5, subd. (b)(2).) Before bringing a motion for attorney's fees as a sanction under this statute, the moving party must comply with the “safe harbor” provisions of Section 128.5, subdivision (f)(1)(B). Moreover, a motion for sanctions under this section must be made separately from other motions or requests. (Code Civ. Proc, ; 128.5, subd. (f)(1)(A).)
While sanctions may be imposed pursuant to Section 128.5 for the bringing of a frivolous motion to tax costs (see Silver v. Gold (1989) 211 Cal.App.3d 17, 26), Defendant has failed to bring the request in a separately filed motion pursuant to Section 128.5, subdivision (f)(1)(A). Moreover, especially in the absence of a declaration from counsel explaining the billing rate and hours spent, $7,500.00 in connection with an opposition to a relatively brief motion to tax costs is not reasonable.
Accordingly, the request for sanctions is DENIED.
Plaintiff’s motion to tax costs is DENIED as moot. Requests for sanctions are DENIED.
Defendant to give notice.
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