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Filing # 148578306 E-Filed 04/28/2022 01:09:56 PM IN THE COUNTY COURT IN AND FOR POLK COUNTY, FLORIDA CASE NO.: Spring Oaks Capital SPV, LLC Plaintiff, VS. COMPLAINT Henrietta Callowhill, Defendant / COMES NOW the Plaintiff, Spring Oaks Capital SPV, LLC, by and through its undersigned counsel, and sues Defendant, Henrietta Callowhill, and states as follows: GENERAL ALLEGATIONS This is an action for damages that are within the jurisdictional limits of this court exclusive of costs. Venue of this action is proper in the county named above because the Defendant is a resident of this county and/or because the Defendant executed the subject agreement in this county Upon Defendant’s request, the original creditor, The Bank of Missouri, issued a credit account in the name of Defendant. Prior to the commencement of this action, Plaintiff, Spring Oaks Capital SPV, LLC, acquired Defendant’s account originated by the original creditor, see attached Exhibit “A”, and as such is entitled to all rights originally bestowed upon the original creditor. Although demands have been made by Plaintiff, Spring Oaks Capital SPV, LLC, upon Defendant for payment, Defendant has failed or refused to pay the amount due and owing on the account. Plaintiff and its predecessors have duly performed all promises and conditions precedent as required. AMO2022SC-003090-0000-00 Received in Polk 04/28/2022 07:46 PMCOUNT I- ACCOUNT STATED Plaintiff readopts and re-alleges allegations one (1) through six (6) above and further states as follows: 7. Before the institution of this action, Plaintiff's predecessor in interest and the Defendant, Henrietta Callowhill, had business transactions between them where the parties agreed upon a resulting balance. Plaintiff is an assignee and as such obtains all rights of the original creditor to be repaid. There are no unresolved billing disputes made in response to receiving the account statements and, therefore, there is a prima facie case establishing the correctness of the account balance. See, Farley v. Chase Bank, USA, NA, 37 So. 3d 936 (Fla. 4" DCA 2010). Copies of any available statements are attached hereto and incorporated herein as Composite Exhibit “B” By using and/or making payments on the subject account, the Defendant accepted the resulting balance. 10. After adjustment for any credits or payments made after charge off of the account, Defendant owes Plaintiff, Spring Oaks Capital SPV, LLC, the amount of $2,354.22. WHEREFORE Plaintiff, Spring Oaks Capital SPV, LLC, respectfully requests this Honorable Court enter Judgment in its favor against Defendant, Henrietta Callowhill, in the sum of $2,354.22 together with court costs as described herein and any other just and further relief as this Honorable Court deems just and proper. Respectfully submitted, ANDREU, PALMA, LAVIN, & SOLIS, PLLC lef, A biana Hernandeg - FBA/ 1024010 815 NW 57th Avenue, Suite 40 Miami, FL 33126 Tel. (877)229-5972 Fax. (800)391-2178 Email: eservice@andreupalma.com 22740005572022SC-003090-0000-00 Received in Polk 04/28/2022 07:46 PMEXHIBIT A2022SC-003090-0000-00 Received in Polk 04/28/2022 07:46 PMASSIGNMENT OF LEGAL TITLE ASSIGNMENT OF LEGAL TITLE, dated as of October 1, 2021 (this "Assignment of Legal Title"), executed between Spring Oaks Capital SPV, LLC, as Purchaser (the "Purchaser"), and Spring Oaks Capital, LLC,as Seller (the "Seller". WITNESSETH WHEREAS, the Purchaser and the Seller are parties to the Purchase Agreement, dated as of November 12, 2020 (as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof, the "Purchase Agreement"), between the Purchaser and the Seller; WHEREAS, all right, title and interest to the Portfolios, Related Receivables and related Other Conveyed Property (as each such term is defined in the Purchase Agreement) was previously assigned from Seller to Purchaser on the dates set forth in the executed Assignments between Seller and Purchaser referenced in Schedule A attached hereto (and associated electronic files listing each account), other than legal title to the Portfolios which had remained with Seller pursuant to Section 6(a) of the applicable Assignment; and WHEREAS, pursuant to the Purchase Agreement, the Seller now wishes to sell and/or contribute legal title to the Portfolios (as each such term is defined in the Purchase Agreement) to the Purchaser hereunder. NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Purchaser and the Seller, intending to be legally bound, hereby agree as follows: 1 Definitions. All terms defined in the Purchase Agreement (whether directly or by reference to other documents) and used herein shall have such defined meanings when used herein, unless otherwise defined herein 2 Conveyance of Receivables. Subject to the conditions specified in Section 2.1 of the Purchase Agreement and subject to the mutually agreed upon terms contained in the Purchase Agreement, the Seller does hereby sell, transfer, assign, set over and-otherwise convey to the Purchaser, without recourse (subject to the obligations set forth herein and in the Purchase Agreement) all right, title and interest of the Seller in and to the following Legal title to the Portfolios listed on Schedule A to this Assignment of Legal Title 3 Restatement of Representations and Warranties of Seller. The Seller hereby restates the representations and warranties set forth in Sections 3.1 of the Purchase Agreement (with respect to the Portfolios and the Related Receivables specified in the attached addendum tothe Schedule of Receivables attached as Schedule A hereto) and Section 4 of the Credit Agreement with full force and effect as if the same were fully set forth herein. The Seller hereby certifies that 12022SC-003090-0000-00 Received in Polk 04/28/2022 07:46 PMall conditions precedent set forth in Section 2.1(b) of the Purchase Agreement have been satisfied. 4 Restatement of Representations and Warranties of Purchaser. The Purchaser hereby restates the representations and warranties set forth in Section 4.1 of the PurchaseAgreement with full force and effect as if the same were fully set forth herein. The Purchaser hereby certifies that all conditions precedent set forth in Section 2.1(b) of the Purchase Agreement and Sections 3.1 and 3.2 of the Credit Agreement, as applicable, have been satisfied. 5 Transfer and Sale of Receivables. The Seller hereby certifies that the Portfolios, Related Receivables and Other Conveyed Property transferred to the Purchaser hereunder are free and clear of all Liens (other than Permitted Liens) and that the beneficial interest in and title to such Related Receivables and Other Conveyed Property shall not be part of the Seller's estate in the event of the filing of a bankruptcy petition by or against the Seller under any bankruptcy law. In the event that, notwithstanding the intent of the Seller, the transfer and assignment contemplated hereby and under the Purchase Agreement is held not to be a sale or contribution, the transfer and assignment of such Portfolios, Related Receivables and Other Conveyed Property hereunder shall constitute, and the Seller hereby grants to the Purchaser, to secure its obligations hereunder, a security interest in the property referred to in Section 2 above, which security interest has been assigned to the Collateral Agent for the benefit of the Secured Parties, and this Assignment of Legal Title and the Purchase Agreement shall each constitute a security agreement under applicable law. 6 Counterparts. This Assignment of Legal Title may be executed in two or more counterparts,each of which shall be an original, but all of which together shall constitute one and the same Instrument. 7 Governing Law. THIS ASSIGNMENT OF LEGAL TITLE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-14010F THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS ANDREMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. [signature page follows]2022SC-003090-0000-00 Received in Polk 04/28/2022 07:46 PMIN WITNESS WHEREOF, the undersigned have caused this Assignment of Legal Title to be dulyexecuted and delivered by their respective duly authorized officers on the day and year firstabove written: SPRING OAKS CAPITAL SPV, LLC, as Purchaser By Vt Nyt Name: Timothy Stapleford Title: President and Chief Executive Officer SPRING OAKS CAPITAL, LLC, as Seller By Vt Eat Name: Timothy Stapleford Title: President and Chief Executive Officer [signature page to Assignment of Legal Title dated 10-1-2021]2022SC-003090-0000-00 Received in Polk 04/28/2022 07:46 PMSCHEDULE A Electronic files Associated with the following Assignments Mariner Portfolio- Assignment-November 13, 2020 Upgrade Portfolio- Assignment- November 19, 2020 Upgrade Portfolio-Assignment-December 23, 2020 Upgrade Portfolio-Assignment-January 25, 2021 Advance Financial Portfolio-Assignment-February 2, 2021 Upgrade Portfolio-Assignment-February 25, 2021 Upgrade Portfolio-Assignment-March 24, 2021 Upgrade Portfolio-Assignment-April 22, 2021 Upgrade Portfolio-Assignment-May 21, 2021 Upgrade Portfolio-Assignment-June 25, 2021 Genesis Portfolio-Assignment-June 30, 2021 Advance Financial-Assignment-July 9, 2021 Upgrade Portfolio-Assignment-July 19, 2021 Diverse (DNF Associates) Portfolio-Assignment July 23, 2021 Genesis Portfolio-Assignment-July 31, 2021 Prosper Portfolio-Assignment-August 23, 2021 Upgrade Portfolio-Assignment- August 24, 2021 Genesis Portfolio-Assignment-August 31, 2021 Upgrade Portfolio-Assignment-September 21, 2021 Genesis Portfolio-Assignment September 30, 2021 First National Bank of Omaha Portfolio-Assignment September 30, 20212022SC-003090-0000-00 Received in Polk 04/28/2022 07:46 PMExhibit 2 to Receivables Sale Agreement FORM OF BILL OF SALE (Genesis FS Card Services, Inc.) Closing Date: February 28, 2020 Genesis FS Card Services, Inc., an Oregon corporation ("Seller"), in consideration of the Purchase Price (as defined in the Agreement referred to below) and other valuable consideration, the receipt of which is hereby acknowledged, hereby sells, assigns and transfers all right, title and interest in and to (i) the Accounts identified in the Sal Files entitled ‘FurnitureTODIVERSEFUNDING-Feb-SALEFILE-20200224.txt,’ ‘HealthcareToDIVERSEFUNDING-Feb-SALEFILE-20200225.txt,” and ‘Home ImprovementToDIVERSEFUNDI-SALEFILE-20200224.txt’ (which may be in electronic form) to DNF Associates, LLC, a Delaware Limited Liability Company ("Buyer"), without recourse or representation except as expressly provided herein or pursuant to the terms, and subject to the conditions, set forth in the Agreement (the “Accounts), and (ii) all proceeds of such Accounts. This Bill of Sale is delivered pursuant to that certain Receivables Sale Agreement, dated as of July 23, 2019, by and between Seller, GFSPL, LLC and Buyer (as amended, restated, supplemented or otherwise modified from time to time, the "Agreement"). All capitalized terms used but not defined in this Bill of Sale shall have the meanings assigned to such terms in the Agreement. Genesis FS Card Services, Inc. By: AA. Name: GREGG ATKINSON Title: CFO2022SC-003090-0000-00 Received in Polk 04/28/2022 07:46 PMExhibit 2a to Receivables Sale Agreement FORM OF BILL OF SALE (GFSPL, LLC) Closing Date: February 28, 2020 GFSPL, LLC, a Delaware limited liability company ("Seller"), in consideration of the Purchase Price (as defined in the Agreement referred to below) and other valuable consideration, the receipt of which is hereby acknowledged, hereby sells, assigns and transfers all right, title and interest in and to (i) the receivables associated with the Accounts identified in the Sale Files entitled ‘FurnitureToDIVERSEFUNDING-Feb-SALEFILE-20200224.txt,” ‘HealthcareToDIVERSEFUNDING-Feb-SALEFILE-20200225.txt,’ and “Home ImprovementToDIVERSEFUNDI-SALEFILE-20200224.txt’ (which may be in electronic form) to DNF Associates, LLC, a Delaware Limited Liability Company ("Buyer"),without recourse or representation except as expressly provided herein or pursuant to the terms, and subject to the conditions, set forth in the Agreement (the “Accounts”), and (ii) all proceeds of such Accounts. This Bill of Sale is delivered pursuant to that certain Receivables Sale Agreement, dated as of July 23, 2019, by and between Seller, Genesis FS Card Services, Inc., and Buyer (as amended, restated, supplemented or otherwise modified from time to time, the "Agreement"). All capitalized terms used but not defined in this Bill of Sale shall have the meanings assigned to such terms in the Agreement GFSPL, LLC By: A, —m— Name: GREGG ATKINSON Title: CFO2022SC-003090-0000-00 Received in Polk 04/28/2022 07:46 PMEXHIBIT II BILL OF SALE THIS BILL OF SALE is made and entered into between Spring Oaks Capital, LLC (“Buyer”) and DNF Associates, LLC (“Seller”), pursuant to the Accounts Purchase Agreement dated July 20, 2021 (the “Agreement”) entered into between Buyer and Seller. Capitalized terms used but not defined herein shall have the same meaning as defined in the Agreement. In consideration of the payment made pursuant to the Agreement and such other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Seller does hereby sell, transfer, convey, assign and deliver to Buyer, effective as of the Closing Date: (a) all rights, title and interest of Seller in and to those certain receivables, Accounts, or evidences of Debt described in the Agreement and Account Schedule (attached hereto as Exhibit I) attached hereto and made part hereof for all purposes, including (b) all principal, interest or other proceeds of any kind with respect to the Accounts described on the Account Schedule, but excluding any payments or other consideration received by Seller on or prior to the Cut-off Date; without recourse and without representation or warranty of any type, kind, character or nature, express or implied, except as specifically provided in the Agreement, and subject to Buyer’s and Seller’s repurchase rights as set forth in the Agreement Buyer hereby accepts such sale, transfer, conveyance, assignment, and delivery of the Accounts, including without limitation the right to all principal, interest or other proceeds of any kind with respect to the Accounts remaining due and owing as of the Cut-Off Date applicable to such Accounts. Pursuant to the foregoing sale and assignment, the Seller stipulates that Buyer may be substituted for Seller as the valid owner of the Accounts and hereby waives any notice or hearing requirements or otherwise. Nothing in this Bill of Sale and Assignment shall be deemed to modify, limit or amend any of the rights or obligations of Buyer or Seller under the Agreement. This Bill of Sale shall inure to the benefit of, and be binding upon, the respective permitted successors and assigns of Seller and Buyer and shall be governed by and construed and interpreted in accordance with the Agreement and the laws of the State of Delaware, without regard to such state’s principles of conflicts of law. This Bill of Sale may be executed by facsimile or electronic transmission in multiple counterparts, each of which shall be an original, but together shall constitute one and the same instrument. IN WITNESS WHEREOF, each party, through its duly authorized officer, has caused this Bill of Sale to be executed in their name this 23 day of July, 2021.2022SC-003090-0000-00 Received in Polk 04/28/2022 07:46 PMSELLER: DNF ASSOCIATES, LLC BUYER: SPRING OAKS CAPITAL LLC By: ov 4:cet Heat Name: Lawrence Schiavi Name: Timothy £, Stapleford Tithe: Managing Partner Title: Ageregate Unpold Balance: aR Number of Accounts: Signature page for Mf of Sale pursuant to Account Purchase Agreement dated hily 20, 2031,2022SC-003090-0000-00 Received in Polk 04/28/2022 07:46 PMASSIGNMENT OF LEGAL TITLE ASSIGNMENT OF LEGAL TITLE, dated as of October 1, 2021 (this "Assignment of Legal Title"), executed between Spring Oaks Capital SPV, LLC, as Purchaser (the "Purchaser"), and Spring Oaks Capital, LLC,as Seller (the "Seller". WITNESSETH WHEREAS, the Purchaser and the Seller are parties to the Purchase Agreement, dated as of November 12, 2020 (as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof, the "Purchase Agreement"), between the Purchaser and the Seller; WHEREAS, all right, title and interest to the Portfolios, Related Receivables and related Other Conveyed Property (as each such term is defined in the Purchase Agreement) was previously assigned from Seller to Purchaser on the dates set forth in the executed Assignments between Seller and Purchaser referenced in Schedule A attached hereto (and associated electronic files listing each account), other than legal title to the Portfolios which had remained with Seller pursuant to Section 6(a) of the applicable Assignment; and WHEREAS, pursuant to the Purchase Agreement, the Seller now wishes to sell and/or contribute legal title to the Portfolios (as each such term is defined in the Purchase Agreement) to the Purchaser hereunder. NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Purchaser and the Seller, intending to be legally bound, hereby agree as follows: 1 Definitions. All terms defined in the Purchase Agreement (whether directly or by reference to other documents) and used herein shall have such defined meanings when used herein, unless otherwise defined herein 2 Conveyance of Receivables. Subject to the conditions specified in Section 2.1 of the Purchase Agreement and subject to the mutually agreed upon terms contained in the Purchase Agreement, the Seller does hereby sell, transfer, assign, set over and-otherwise convey to the Purchaser, without recourse (subject to the obligations set forth herein and in the Purchase Agreement) all right, title and interest of the Seller in and to the following Legal title to the Portfolios listed on Schedule A to this Assignment of Legal Title 3 Restatement of Representations and Warranties of Seller. The Seller hereby restates the representations and warranties set forth in Sections 3.1 of the Purchase Agreement (with respect to the Portfolios and the Related Receivables specified in the attached addendum tothe Schedule of Receivables attached as Schedule A hereto) and Section 4 of the Credit Agreement with full force and effect as if the same were fully set forth herein. The Seller hereby certifies that 12022SC-003090-0000-00 Received in Polk 04/28/2022 07:46 PMall conditions precedent set forth in Section 2.1(b) of the Purchase Agreement have been satisfied. 4 Restatement of Representations and Warranties of Purchaser. The Purchaser hereby restates the representations and warranties set forth in Section 4.1 of the PurchaseAgreement with full force and effect as if the same were fully set forth herein. The Purchaser hereby certifies that all conditions precedent set forth in Section 2.1(b) of the Purchase Agreement and Sections 3.1 and 3.2 of the Credit Agreement, as applicable, have been satisfied. 5 Transfer and Sale of Receivables. The Seller hereby certifies that the Portfolios, Related Receivables and Other Conveyed Property transferred to the Purchaser hereunder are free and clear of all Liens (other than Permitted Liens) and that the beneficial interest in and title to such Related Receivables and Other Conveyed Property shall not be part of the Seller's estate in the event of the filing of a bankruptcy petition by or against the Seller under any bankruptcy law. In the event that, notwithstanding the intent of the Seller, the transfer and assignment contemplated hereby and under the Purchase Agreement is held not to be a sale or contribution, the transfer and assignment of such Portfolios, Related Receivables and Other Conveyed Property hereunder shall constitute, and the Seller hereby grants to the Purchaser, to secure its obligations hereunder, a security interest in the property referred to in Section 2 above, which security interest has been assigned to the Collateral Agent for the benefit of the Secured Parties, and this Assignment of Legal Title and the Purchase Agreement shall each constitute a security agreement under applicable law. 6 Counterparts. This Assignment of Legal Title may be executed in two or more counterparts,each of which shall be an original, but all of which together shall constitute one and the same Instrument. 7 Governing Law. THIS ASSIGNMENT OF LEGAL TITLE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-14010F THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS ANDREMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. [signature page follows]2022SC-003090-0000-00 Received in Polk 04/28/2022 07:46 PMIN WITNESS WHEREOF, the undersigned have caused this Assignment of Legal Title to be dulyexecuted and delivered by their respective duly authorized officers on the day and year firstabove written: SPRING OAKS CAPITAL SPV, LLC, as Purchaser By Vt Nyt Name: Timothy Stapleford Title: President and Chief Executive Officer SPRING OAKS CAPITAL, LLC, as Seller By Vt Eat Name: Timothy Stapleford Title: President and Chief Executive Officer [signature page to Assignment of Legal Title dated 10-1-2021]2022SC-003090-0000-00 Received in Polk 04/28/2022 07:46 PMSCHEDULE A Electronic files Associated with the following Assignments Mariner Portfolio- Assignment-November 13, 2020 Upgrade Portfolio- Assignment- November 19, 2020 Upgrade Portfolio-Assignment-December 23, 2020 Upgrade Portfolio-Assignment-January 25, 2021 Advance Financial Portfolio-Assignment-February 2, 2021 Upgrade Portfolio-Assignment-February 25, 2021 Upgrade Portfolio-Assignment-March 24, 2021 Upgrade Portfolio-Assignment-April 22, 2021 Upgrade Portfolio-Assignment-May 21, 2021 Upgrade Portfolio-Assignment-June 25, 2021 Genesis Portfolio-Assignment-June 30, 2021 Advance Financial-Assignment-July 9, 2021 Upgrade Portfolio-Assignment-July 19, 2021 Diverse (DNF Associates) Portfolio-Assignment July 23, 2021 Genesis Portfolio-Assignment-July 31, 2021 Prosper Portfolio-Assignment-August 23, 2021 Upgrade Portfolio-Assignment- August 24, 2021 Genesis Portfolio-Assignment-August 31, 2021 Upgrade Portfolio-Assignment-September 21, 2021 Genesis Portfolio-Assignment September 30, 2021 First National Bank of Omaha Portfolio-Assignment September 30, 20212022SC-003090-0000-00 Received in Polk 04/28/2022 07:46 PMAFFIDAVIT OF SALE OF ACCO! State of MISS County of PERRY Martha 1. Rotlet, being duly sw de SPUBES ity over 18 and not a party to Ch fam the [CC of The £ Bank of N ourt Debt or Y. ie position T ’ Prebt Seller's add Df yn am aware ot the prec: Pe d for the sale weg gunont of oh tronically stored bus rou E On or abors the dates specified } he attached Exhibit & o THOM), Seller sold w Genesis FS Card Serv Inc. (Buyer) as specified in £ hibic A YE 4 a pool of Be ssf ACOORS OF iginated b ¢ Seller. Prior io the sale, suc rds were kept in CHET § OTE RY COnR asingss, and I net 2 wars > OF any erro: SES record a eat betwe infarmation ohn Soe TW ¢ Epa ies between the information n suck dd the infarmatior yin Exhibit Pe « jneludin neIH £ be Unpaid Balances and ideniities a creditor that said the Accounts fs the Seller. Phe above statements IFRS iO the best of my knowlad: fo Dated: [12.2 33 2021} 3 ‘] Martha J. f td. A, ahs AMOR) pp a Sworn t6 before me this day of December, 2021. x M ae Fk TARY Se. 3X PUREE TARY iNotary famp} yf ime $e pos? Byis 0 Bee CERTIFICATE OF CONRO: ee son Cr AR ll an aitorncy du Ly He
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Jul 31, 2024 |22STCV13792
Case Number: 22STCV13792 Hearing Date: July 31, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT ROSEVIANNEY C. OGUMSI Plaintiff(s), vs. RICHARD DALE GENTILE, D.D.S., et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 22STCV3792 [TENTATIVE] ORDER RE: MOTION TO TAX COSTS Dept. 3 8:30 a.m. July 31, 2024 ) I. INTRODUCTION Plaintiff Rosevianney C. Ogumsi filed this action against defendants Heydar Shahrokh, D.D.S. and Heydar Shahrokh, D.D.S., Inc., dba Comfort Dental Center (collectively, Defendants) on April 26, 2022. On May 6, 2024, the Court entered judgment in favor of Defendants following their motion for summary judgment. On May 21, 2024, Defendants filed a memorandum of costs and served it on Plaintiff via mail. On June 10, 2024, Plaintiff filed this motion to strike or tax costs. Plaintiff moves to strike: (a) $2,760 in filing and motion fees, (b) $8,322.16 for deposition costs, (c) $89 for service of process, (d) $1,200 in witness fees, (e) $270.60 for transcripts, and (f) $9,325 for court reporter fees. Defendants filed an opposition brief on July 24, 2024. Plaintiff filed a reply brief on July 29, 2024. II. LEGAL STANDARD Code of Civil Procedure section 1032 (all statutory references to follow are to the Code of Civil Procedure except when otherwise indicated) provides for recovery of costs by a prevailing party. Allowable costs under Section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount.¿An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount).¿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, 773-774.)¿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.¿(Ibid.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.¿(Ibid.)¿However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized.¿(Id.)¿Discretion is abused only when, in its exercise, the court exceeds the bounds of reason, all of the circ*mstances being considered.¿(Ibid.) In ruling upon a motion to tax costs, the trial courts first determination is whether the statute expressly allows the particular item and whether it appears proper on its face, if so, the burden is on the objecting party to show the costs to be unnecessary and unreasonable. Where costs are not expressly allowed by statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary. III. DISCUSSION Filing and Motion Fees Plaintiff complains that Defendants line item entries for filing and motion fees are insufficient to establish that they were reasonably necessary to the conduct of the litigation and/or reasonable in amount. Section 1033.5 specifically authorizes the recovery of filing and motion fees and a review of the filings for which Defendants seek to recover their filings shows that they were reasonable. These filings include numerous pleadings such as answers, demurrers and special motions to strike in response to Plaintiffs initial and amended complaints, as well as two typical discovery motions, an ex parte application, and a summary judgment motion, which eventually disposed of this case. Plaintiff does not challenge any particular filing as unnecessary or unreasonable. Therefore, the motion to tax filing fees is DENIED. Deposition Costs Plaintiff moves to tax $8,322.16 for deposition costs. The memorandum of costs only lists $2,291.85 in connection with Plaintiffs deposition, taken on August 19, 2022, and 18 subpoenas duces tecum in a single block-billed entry of $6,030.31. Taking, video recording, and transcribing necessary depositions are allowable costs pursuant to section 1033.5(a)(3). Therefore, the costs for deposing Plaintiff are, on its face, proper. However, there is no list of the specific deponents for whom the additional costs were incurred and Defendants opposition merely lists 27 pages of receipts for issuing those subpoenas, without demonstrating how these costs for 18 subpoenas were necessarily incurred. Therefore, the motion to tax deposition costs is GRANTED in part in the amount of $6,030.31. Service of Process Costs Plaintiff moves to strike $89 incurred for service on Soheil Yashari, D.D.S. (Dr. Yashari). Service of process fees are explicitly authorized by section 1033.5(a)(4) and Plaintiff offers no argument as to why this cost is unreasonable or not necessary to the litigation. The motion to tax this cost is DENIED. Expert Witness Fees Plaintiff objects to Defendants claimed cost of $1,200 for the expert, John Buoncristiani, D.D.S. Expert witness fees are allowed as costs if they are ordered by the Court or authorized by some other statute, such as Code of Civil Procedure section 998. There is no indication from the record that Dr. Buoncristiani was an expert ordered by the Court or that an offer to compromise pursuant to section 998 was made. Therefore, the Court GRANTS Plaintiffs motion to strike the expense of $1,200 for expert witness fees. Court Reporter Fees Plaintiff moves to strike $9,325 for court reporter fees because they were not ordered by the Court. There is no statutory requirement that court reporters must be ordered by the Court in order for their fees to be recoverable. Nevertheless, Defendants memorandum of costs does not include any description identifying which hearings these court reporters were hired for and Defendants make no effort to identify them in their opposition brief, other than to attach copious pages of receipts. Therefore, although court reporter fees are allowable by statute, Defendants do not show how the entire amount was reasonable and necessary to the conduct of the litigation. The amount of $9,325 is taxed from Defendants cost memo. Transcript Fees Defendants claim $270.60 to for transcript fees. Transcript fees not ordered by the Court are expressly disallowed. (C.C.P., § 1033.5(b)(5).) Defendants only argue that the transcript ordered was later used to support their summary judgment motion, which is an insufficient basis for showing that it was ordered by the Court. The motion to tax the transcript fees is GRANTED. Models, Enlargements, and Photocopies of Exhibits Plaintiff moves to strike $214.06 claimed for models, enlargments, and photocopies of exhibits. The memorandum of costs specifies that $214.06 was incurred for photocopying, even though postage, telephone, and photocopying charges are not allowable as costs, except for exhibits. (Code Civ. Proc., § 1033.5(b)(3).) Even if the photocopying charges were for exhibits, the cost to obtain models, enlargements, and photocopies of exhibits would be allowable under section 1033.5(a)(13) if they were reasonably helpful to aid the trier of fact. Because Defendants prevailed at summary judgment, before any exhibits were presented to the trier of fact, these costs are not recoverable under section 1033.5(a)(13). Defendants also provide no explanation for why these costs were reasonably necessary to the conduct of the litigation or reasonable. The Court, therefore, declines to exercise its discretion to allow their recover. The motion to tax $214.06 for photocopying costs is GRANTED. Fees for Electronic Filing or Service Plaintiff argues that the $783.70 in electronic filing/service fees claimed as costs by Defendants are not allowed by statute. However, Los Angeles County Superior Court requires electronic filing. Therefore, the fees for the electronic filing or service of documents through an electronic filing service provider are allowable as costs. (Code Civ. Proc., § 1033.5(a)(14).) Nevertheless, Defendants do not specify how much each document cost to file or serve in an attachment and there is no evidence of these charges attached to their opposition brief. Accordingly, the motion to tax these costs is GRANTED. Court Imaging Costs Defendants attach receipts showing that they were charged to download various court documents. The costs incurred to download court documents are not expressly authorized by statute and Defendants do not explain why the downloaded documents were necessary to the conduct of the litigation. The motion to tax $110.40 for court document images is GRANTED. IV. CONCLUSION Plaintiffs motion to tax costs is GRANTED in part. The amount taxed from Defendants memorandum of costs is $17,938.07, for a total amount remaining of $5,136.85 in recoverable costs. Dated this 31st day of July, 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
Ruling
Verma, Smiley vs. Floor and Decor Outlets of America, Inc.
Aug 12, 2024 |S-CV-0051952
S-CV-0051952 Verma, Smiley vs. Floor and Decor Outlets of America** NOTE: telephonic appearances are strongly encouragedAppearance required. Cross Complaint of Floor Décor Outlets of America,Inc. is not at issue - Need status of ROE Cross Defendants
Ruling
Aug 01, 2024 |23STCV05268
Case Number: 23STCV05268 Hearing Date: August 1, 2024 Dept: 28 Having considered the moving, opposition, and reply papers, the Court rules as follows. BACKGROUND A. Prior proceedings On March 9, 2023, Plaintiff Luis Alvarado Flores (Plaintiff) filed this action against Defendants Amigos Building Materials & Hardware, Inc. (Amigos), Joel Artega Govea (Govea), It Is What It Was Smoke Shop and Mini Mart (Smoke), Darrell Anthony Jones (Jones), Guadalupe Zamudio (Zamudio), and Does 1-50 for negligence, negligence per se, strict liability based on statute, strict liability based on common law, negligent infliction of emotional distress, and premises liability. On April 25, 2023, the clerk entered the defaults of Smoke and Jones. On May 1, 2023, Amigos and Govea filed an answer and a cross-complaint against Cross-Defendants Roes 1-20 for indemnification, apportionment of fault, and declaratory relief. On May 8, 2023, the clerk entered Zamudios default. On October 24, 2023, Plaintiff amended the complaint to include Defendant Ural Gamble as Doe 1 (Gamble). The trial is currently scheduled for February 20, 2025. A. This motion On April 22, 2024, Amigos and Govea (Moving Defendants) filed and electronically served a motion for summary judgment or, alternatively, summary adjudication. The motion was set for hearing on July 3, 2024. On June 18, 2024, Plaintiff filed an opposition. On June 28, 2024, Moving Defendants filed a reply. The Court continued the hearing to August 1, 2024. PARTIES REQUESTS Moving Defendants ask the Court to grant summary judgment or, in the alternative, summary adjudication. Plaintiff asks the Court to deny the motion.DISCUSSION Under Code of Civil Procedure section 437c, subdivision (a), notice of a motion for summary judgment and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days. (Code Civ. Proc., § 437c, subd. (a)(2).) Code of Civil Procedure section 1010.6, subdivision (a)(3), requires that two court days be added to the notice period when the moving party electronically serves a summary judgment motion. (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 10:77, p. 10-34 (Cal. Practice Guide); see Code Civ. Proc., § 1010.6, subd. (a)(3)(B) [Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days with exceptions that do not apply here].) Moving Defendants motion was set for hearing on July 3, 2024. 75 days before July 3, 2024 was April 19, 2024. Adding two Court days to the notice period for electronic service made the last day for service April 17, 2024. Moving Defendants proof of service states that Moving Defendants electronically served the motion on April 22, 2024. Where the moving party notices the hearing in less than the required time, notice must begin anew. The court cannot cure this defect by continuing the hearing for the missing number of days. (Cal. Practice Guide, supra, ¶ 10:80.6, p. 10-35, emphasis omitted.) Therefore, the Court's continuance of the hearing to August 1, 2024 did not cure the defective notice. The Court denies the motion because Moving Defendants did not provide the statutorily mandated notice. CONCLUSION The Court DENIES the motion for summary judgment or, alternatively, summary adjudication filed by Defendants Amigos Building Materials & Hardware, Inc. and Joel Artega Govea. Moving parties are ordered to give notice of this ruling. Moving parties are ordered to file the proof of service of this ruling with the Court within five days.
Ruling
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Jul 26, 2024 |C23-02368
C23-02368CASE NAME: JOSE GONZALEZ VS. STEVEN HOLDEN*HEARING ON MOTION FOR DISCOVERY NOTICE OF MOTION AND MOTION TO COMPELDISCOVERY RESPONSES FILED BY STEVEN JOHN HOLDEN AND CAMILLE ROSEFILED BY:*TENTATIVE RULING:*Off calendar.
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