HomelessInCalifornia

GOING TO TRIAL IN CALIFORNIA

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I believe that you have to weigh some serious issues. First the court has to protect it's ruling, meaning if he allows stuff not authorized by statute it makes the whole ruling appealable as an abuse of discretion. The court is not going to allow those copies, they never do. You will be unable to prove they were exhibits as no court reporter. I know you don't want to hear this right now but they got you on these costs, and to proceed further will endanger the judgement that you did get. I know this sucks and hurts greatly at a time you don't need this.

As a friend, I say this sheath your sword and do not ruin your victory. Get your 105.00 and find other reasons to hammer them. They have a nice racket going on where you have to expend money to fight and then they know they will not have to pay you. I believe you have them, however on a failure to meet and confer.

If you are going to argue this you will have to spend more money to get there, and the court will have to rule for taxing the costs. However, you may look at what happened at trial and see if any of the stuff was actual exhibits.

IMHO I wouldn't press for a ruling the court cannot make, best to file a reply though because I think a motion to tax costs makes attorneys fees to the winner. They may be able to get even more in attorneys fees than they paid. Doesn't Rosenthal cover reasonable costs to defend. I don't know what to file whether their is a reply that says ok fugetaboutit 150.00 it is then.

There has been no case in California where copying costs were given to a defendant for motions and such. Sorry old friend to be the bearer of bad tidings.

In Friendship,

Seadragon

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It isn't fair that a poor person has to take it up the wazoo, win or lose.  It isn't fair that a poor person cannot recoup their expenses. 

 

The code says "exhibits" costs are recoverable.  It does not say "exhibits at trial" or "exhibits logged into evidence."  I only counted the exhibits attached to pleadings during the case ... not the pleadings themselves. 

 

Consulting Services (paralegal services) to do cite checks and prep formats are NOT attorney's fees.  The cost of such services is NOT precluded by statute.  They should be recoverable under "Other."  I did not even charge full rate or anywhere near the full hours.

 

That court was a 40 minute drive each way through the desert.  Court filing service are NOT attorney's fees and should be recoverable.  I did not charge anywhere near what the courier quotes are.  The cost of courier services is NOT precluded by statute and should be recoverable under "Other."

 

Statute says the clock to file a Motion to Tax costs runs from the date of service of the Memorandum of Costs ...NOT from the date of service of the Judgment or Notice of Entry of Judgment.

 

i do NOT see how the court could even calendar this Motion to Tax Costs.

 

I do NOT see how the court would, on the day plaintiff's Motion to Tax was filed, should take the Motion as sufficient without hearing argument and should go ahead and issue an Amended Judgment reducing the award.

 

There wasn't even an attempt to meet and confer.

 

This has me so angry, depressed, and upset.  I really feel taken advantage of and abused and reduced to a second-class citizen.

 

I still need to figure out how to respond, what docs to file and serve if any, what my timeline for response is, and if I really just have to bend over and accept this abuse and if I should even bother to show at the hearing.

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Okay, so I still don't know WHAT to do or WHEN to do it.

 

I've had one person tell me that if I fight the motion to tax, I could lose even more, and if the motion isn't granted then that might open a door to appeal (which though I would win on the action, I might lose on the costs and incur additional costs and time in doing so).

 

I have a choice of either rolling over or fighting, and then the plaintiff must either withdraw or win their argument.

 

I believe I have a very SOUND argument on the memo.  But I want this over.

 

it means that for the the next 14 months, I will be "borrowing" tp from public restrooms and not brushing my teeth and will miss several days of meals each month, but I want this done.

 

I believe that fight or roll over, I have to file and serve:

 

1) Notice of Entry of Amended Judgment;

2) Opposition to Motion to Tax Costs; and

3) Declaration in Support of Opposition to Tax Costs.

 

As, the Amended Judgment has given the plaintiff everything they asked for in their Motion to Tax Costs -- although all statutes VERY clearly state that the clock to file a Motion to Tax Costs runs on when the Memorandum of Costs is served and filed and NOT on when the Judgment is entered or served or when the Notice of Entry of Judgment is entered or served.  The court has ignored that fact and gone ahead and entered its Amended Judgment.

 

I don't know how soon I have to respond.  Notice of Motion was served on August 6, 2013, and the hearing on the motion is scheduled for September 20, 2013.

 

However, it is better to get things started than wait.

 

A. I have prepared the Notice of Amended Entry of Judgment.  I have not served or filed it as yet.

 

B. I have drafted a Declaration in Support of Opposition to Motion to Tax.  I think it's solid and clear and the arguments are even in there.  It will help me draft the Opposition. Basically, I let the court and the plaintiff know that they can accept the f**king Amended Judgment and withdraw the Motion to Tax, vacate the hearing, give me proper written notice thereof, and pay me the f**king $105 in settlement in full within thirty (30) days or they can fight me in court for what the court has already ordered and risk my award not only being reversed to the original $775.25 I asked for but being increased to over $1400.

 

I polish my armor.  I sharpen my blade.  The knight prepares for battle.

 

Let me know what you think.  A redacted version of the FIRST DRAFT of the Declaration in Support of Opposition to Motion to Tax is attached.

 

REDACTED FIRST DRAFT OF DECLARATION IN SUPPORT OF OPPOSITION TO MOTION TO TAX COSTS.docx

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 I think a motion to tax costs makes attorneys fees to the winner. They may be able to get even more in attorneys fees than they paid. Doesn't Rosenthal cover reasonable costs to defend. I don't know what to file whether their is a reply that says ok fugetaboutit 150.00 it is then.

 

Why do you think that attorneys' fees could be awarded?  Anything other than Rosenthal?   I don't think there is a Rosenthal act claim in this lawsuit.

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Welcome homelessinCA,

You came to the right place. Since they are suing you for breach of contract, you can send them a Request for Bills of Particulars. In this request you are asking for them to itemize from 0 bal up to the damages and provide statements proving it. Check out my thread Its Official -We won against EAF. In there are links to information on contracts.

You have 30 days from the time you were served to answer the complaint or they will be by reason of default. You can use tge general denial form pld-010 or pld-050, not quite sure but look it up.

Start your calendar. Mark when you received things from them, when you sent things to them and when things are DUE.

If you cant find the template for bills of particulars post again.

 

Good day Help Me and homelessinca !!   I am also being sued in California -- however my lawsuit is not for Breach of Contract, it is for Rule 3.740 Collections -- Do you happen to know the difference? and if I should also file BOP?  I was reading this thread and I can use as much help as I can get!! Thank you so much for any input whatsoever... I was just noticing that most of the lawsuits posted here are for Breach of Contract and mine is different..

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Good day Help Me and homelessinca !!   I am also being sued in California -- however my lawsuit is not for Breach of Contract, it is for Rule 3.740 Collections -- Do you happen to know the difference? and if I should also file BOP?  I was reading this thread and I can use as much help as I can get!! Thank you so much for any input whatsoever... I was just noticing that most of the lawsuits posted here are for Breach of Contract and mine is different..

Hi, Hlpmeplz.  I am not familiar with a Rule 3.740 Collection case, but I did find the Rule online.  I would recommend:  A) Start a Thread specific to your case and Rule 3.740 Collection if you have not already done so; and B ) Get in touch with the California litigators on the site, such as Calawyer.  (I'd message him directly.)

 

Rule 3.740 is a Title 3 Rule of the California Rules of Court:

 

Rule 3.740. Collections cases

(a) Definition

"Collections case" means an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking any of the following:

(1)1pixel.gifTort damages;

(2)1pixel.gifPunitive damages;

(3)1pixel.gifRecovery of real property;

(4)1pixel.gifRecovery of personal property; or

(5)1pixel.gifA prejudgment writ of attachment.

( b ) Civil Case Cover Sheet

If a case meets the definition in (a), a plaintiff must check the case type box on the Civil Case Cover Sheet (form CM-010) to indicate that the case is a collections case under rule 3.740 and serve the Civil Case Cover Sheet (form CM-010) with the initial complaint.

(Subd ( b ) amended effective January 1, 2009.)

© Exemption from general time-for-service requirement and case management rules

A collections case is exempt from:

(1)1pixel.gifThe time-for-service requirement of rule 3.110( b ); and

(2)1pixel.gifThe case management rules that apply to all general civil cases under rules 3.712-3.715 and 3.721-3.730, unless a defendant files a responsive pleading.

(d) Time for service

The complaint in a collections case must be served on all named defendants, and proofs of service on those defendants must be filed, or the plaintiff must obtain an order for publication of the summons, within 180 days after the filing of the complaint.

(e) Effect of failure to serve within required time

If proofs of service on all defendants are not filed or the plaintiff has not obtained an order for publication of the summons within 180 days after the filing of the complaint, the court may issue an order to show cause why reasonable monetary sanctions should not be imposed. If proofs of service on all defendants are filed or an order for publication of the summons is filed at least 10 court days before the order to show cause hearing, the court must continue the hearing to 360 days after the filing of the complaint.

(f) Effect of failure to obtain default judgment within required time

If proofs of service of the complaint are filed or service by publication is made and defendants do not file responsive pleadings, the plaintiff must obtain a default judgment within 360 days after the filing of the complaint. If the plaintiff has not obtained a default judgment by that time, the court must issue an order to show cause why reasonable monetary sanctions should not be imposed. The order to show cause must be vacated if the plaintiff obtains a default judgment at least 10 court days before the order to show cause hearing.

 

I'd read that rule carefully and continue to solicit advice. Yes, it does appear that most of the cases here are for Breach of Contract and/or for Account Stated, but there are bound to be kind and experienced individuals on the forums who can share their input specific to Rule 3.740 case. 

 

Hope that helps.  :-)

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After sending out my Opposition to Motion to Tax, Declaration in Support thereof, [Proposed] Second Amended Judgment, and Notice of Entry of Amended Judgment, two things happened:

 

1) The anonymous phone calls I'd been harassed by for 2 weeks for two to five times a day for a straight 14 days (with no message ever left) stopped (also subsequent to a complaint filed with the FCC and a complaint filed with the National Do Not Call Registry); and

 

2) I received 3 copies of a "Notice of Taking Motion Off Calendar" (differing by dates of service and by stated address of the court -- which has moved since trial).

 

The Notice (redacted) states:

 

"TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

YOU ARE HEREBY NOTIFIED THAT a Motion to tax costs is currently scheduled for 09/20/2013 at 8:30 a.m. in Department ___ of this court, located at _________. Plaintiff ____ respectfully requests that the Motion be taken off court calendar."

 

 

I still have not received the $105.00 from Plaintiff as per the Amended Judgment. 

 

Do I need to do anything about the Notice?  Should I still plan on attending the hearing on 09/20?  Do I twiddle my thumbs and watch the grass grows till the $105 comes in?

 

Thanks.  :)

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I guess you're not finished with them yet Homeless. You have not cut them an inch of slack, nice work BTW. I think you just twiddle your thumbs for a while. Do something good for yourself with that money.

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Thanks!  :)  It looks like the court posts its calendar a week in advance.  I'll check on Friday and again on Monday to be certain the hearing is vacated.

 

I'll be sending a collection notice to them and calendar a creditor's exam shortly thereafter.

 

I wish I could do something "nice" with the money, but it truly does not cover the costs incurred or anywhere near to that.  Prior to this I had a $0 balance on credit cards.  I'll be paying this off for 1.5 years at $30 per month by not buying toiletries and tp and borrowing the money from my Dad.

 

Our system is broken.

 

Onward.

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 HomelessInCalifornia    Thanks for all the information you have posted.  It has been a real help.  I have a question for you.  Looking at your post 323 I where you show Cach,LLC registration with the Secretary of State.  They were not registered until 4/16/2013.  Looking at the LLC laws for California it would seem that they would be illegally filing and maintaining a lawsuit for all the time before that.  So, does that mean that any suits before that date could be dismissed?  Do you have any insight to that perhaps?

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 HomelessInCalifornia    Thanks for all the information you have posted.  It has been a real help.  I have a question for you.  Looking at your post 323 I where you show Cach,LLC registration with the Secretary of State.  They were not registered until 4/16/2013.  Looking at the LLC laws for California it would seem that they would be illegally filing and maintaining a lawsuit for all the time before that.  So, does that mean that any suits before that date could be dismissed?  Do you have any insight to that perhaps?

That is an excellent question and one worthy of the actual attorneys out there.  I don't know.  Try shooting Calawyer a note on that one.

 

Glad the site has helped.  I hope it continues to help.

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Thanks @shellieh98.  As I understand it as a LLC they have to register with the Secretary of State.  I am not so sure about the business license part as I am not familiar with that.  I think the penalties might come from both the  FTB (Franchise Tax Board and and possibly the SOS?).   But, what I was trying to say is that I think you can possibly get the case dismissed if they were not registered with the SOS.   There is no special license or bond required in California that I know of.

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CA does not require a license to collect... they do require registration with the Sec of State in order to bring suit... however, I doubt that it'd be grounds to get the suit dismissed (sorry). 

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@1stStep...Take a look at CORPORATIONS CODE SECTION 17000 Beverly-Killea Limited Liability Company Act.    http://www.leginfo.ca.gov/cgi-bin/displaycode?section=corp&group=16001-17000&file=17000-17005

 

17003...(B)
 

 

17003.  Subject to any limitations contained in the articles of
organization and to compliance with this title and any other
applicable laws, a limited liability company organized under this
title shall have all of the powers of a natural person in carrying
out its business activities, including, without limitation, the power
to:
   (a) Transact its business, carry on its operations, qualify to do
business, and have and exercise the powers granted by this title in
any state, territory, district, possession, or dependency of the
United States, and in any foreign country.
   (B) Sue, be sued, complain and defend any action, arbitration, or
proceeding, whether judicial, administrative, or otherwise, in its
own name.
    

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i know some states say that if your LLC is not kept current then contracts are voidable. i assume similar for an entity which was never formally registered attempting to enter into 'contract' (for lack of a better word to describe jdbs)

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But it's administrative law.... the only thing you could do is possibly file a complaint with the Secretary of State or Franchise Tax Board...

 

 

The only way you can test this is possibly file a motion to dismiss based on that section... 

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