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April 01, 2010

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Fritz Koenig

CIVMS 900013 Falossi v. Koenig

MOTION RE: TO STRIKE COSTS ON MEMORANDUM OF COSTS ON APPEAL
08/24/2011 - 9:05 AM DEPT. M3

JAMES J. HOSKING, JUDGE
CLERK: KIMBERLEY HATCH
COURT REPORTER GARY RAGLE GARY RAGLE
-
DEFENDANT FRITZ KOENIG PRESENT
ATTORNEY GREGORY JOHNSON PRESENT FOR DEFENDANT/RESPONDENT.
(LIMITED SCOPE REPRESENTATION)
PARTIES NOT PRESENT: DAVID FALOSSI
ATTORNEY MARK MAHONEY (NOT) PRESENT FOR PLAINTIFF/PETITIONER.
-
PROCEEDINGS:
PREDISPOSITION HEARING HELD
WITNESS -- FRITZ KOENIG IS SWORN AND EXAMINED.
AFTER ARGUMENT,
COURT MAKES THE FOLLOWING RULING:
CODE OF CIVIL PROCEDURE 1013(A) DOES NOT APPLY BECAUSE CALIFORNIA RULES OF COURT 8.278(C)(1) IS
MORE SPECIFIC REGARDING THE TIME CLERK "SENDS NOTICE".
-
NOTICE WAS FILED 03-03-11, THE FORTIETH DAY WAS 04-12-11 AND THE MEMORANDUM OF COSTS WAS FILED
04-13-11.
DAVID FALOSSI'S MOTION TO STRIKE COSTS ON MEMORANDUM OF COSTS ON APPEAL IS GRANTED.
ATTORNEY JOHNSON TO PREPARE STATEMENT OF DECISION.
ACTION - COMPLETE
=== MINUTE ORDER END ===


Fritz Koenig
6224 Hoot Owl Trail
Yucca Valley, CA 92284
Tel: (310) 508-8794


In Pro Per

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN BERNARDINO

JOSHUA TREE DISTRICT

DAVID FALOSSI, ) NO. CIVMS 900013
)
Plaintiff, )
) OBJECTION TO MOTION TO
vs. ) STRIKE AND REQUEST
) FOR JUDICIAL NOTICE
FRITZ KOENIG, )
) Date: August 24, 2010
Defendant. ) Time: 9:05 a.m.
_____________________________) Dept: M3

OBJECTION TO MOTION TO STRIKE COSTS
I. Introduction
1. Plaintiff’s Motion to Strike impermissibly fails to illuminate the whole truth and thus misguides the Court.
2. Until such time as the court indicates such a showing may be useful, in the interest of economy of the court, and that of both parties, at this time, defendant merely reserves to the degree he [corrected] is entitled, any right to show Plaintiff misguides the Court as a matter of habit.
3. Defendant opposes the striking of any part of defendant’s Memorandum of Costs because Plaintiff’s claim of untimely filing is false.
4. The Memorandum of Costs was timely filed within the 45 days allowed by a complete account of governing codes and rules which must include at least what Plaintiff cites as California Rules of Court 8.278.c.1, and what plaintiff failed to cite, Code of Civil Procedure section 1013, which explicitly extends all times to response by FIVE (5) days when the documents are served by mail.

II. Facts

Defendant, if required at trial, will present evidence that he received an unsigned document titled Remittitur via mail, and received nothing else personally that could properly be construed as a Notice of Issuance of Remittitur.

III. Points and Authorities

California Rules of Court, rule 8.278(c) provides: "(c) Procedure for claiming or opposing costs [¶] (1) Within 40 days after the clerk sends notice of issuance of the remittitur, a party claiming costs awarded by a reviewing court must serve and file in the superior court a verified memorandum of costs under rule 3.1700. [¶] (2) A party may serve and file a motion in the superior court to strike or tax costs claimed under (1) in the manner required by rule 3.1700. [¶] (3) An award of costs is enforceable as a money judgment."

Similarly, rule 3.1702(c) governs the timing of motions for attorney fees and costs brought in the trial court following an appeal: "(c) Attorney[] fees on appeal [¶] (1) Time for motion [¶] A notice of motion to claim attorney[] fees on appeal—other than the attorney[] fees on appeal claimed under (b)—under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1)."

Defendant asserts that defendant’s memorandum of costs was not filed until April 13, 2011, 43 days after the first date which a remittitur could possibly have been issued in case E050396.

Defendant will stipulate that a remittitur was issued and mailed.

Defendant asks the court to find that the remittitur could not have been issued by any means before the March 2, 2011 date when the opinion became final.

Defendant asks the court to find that Plaintiffs Request for Judicial Notice is an admission that the Notice of Issuance was mailed.

Defendant has yet to find, and Plaintiff has yet to produce any evidence that explicitly proves or constructs that the date of “issue” is also the date of “Mailing”.

Nevertheless, Plaintiff’s 6/24/2011 Request for Judicial Notice asserts that the Remittitur was mailed, confusingly Plaintiff does not indicate what date it claims the mailing occurred.

Plaintiff’s Exhibit A, is merely and unsigned apparent copy of a template used to create the signed version of the remittitur.

At a previous hearing on the matter, Judge Hoskins indicated he would take notice of a signed original of the remittitur delivered to the Court. Yet even the Remittitur fails state the date a mailing occurred. Likewise, the Remittitur in the court’s file fails to state that it is a “Notice of Issuance”. Finally, the Remittitur in the court’s file fails to state that a Remittitur has been issued.

There is no evidence this court's docket entry indicating the remittitur "filed" on March 3, 2011 meant that a "notice of issuance" was sent the same day, within the meaning of rule 8.278(c)(1).

Fortunately, the Court need not address this question because of three factors in combination, a) the court should logically deduce that the Notice of Remittitur could not have been created before the Opinion became final, thus the earliest a Notice of Issuance of Remittitur could have possibly been issued was March 02, 2011, the date which the signed Remittitur states the the opinion became final (See Court’s copy of the signed document titled “Remittitur”), AND, b) the Plaintiff’s request for Judicial Notice is an admission that Notice of Issuance was mailed, and c) defendants have the benefit of Code of Civil Procedure section 1013 (section 1013), which extended the time to respond to such a mailed notice an additional five (5) days. That section states, in part, as follows: "The service 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 the 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 . . . but the extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal. This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court." (Code Civ. Proc., § 1013, italics added.)

By its very terms, the statute applies to time limits prescribed by rules of court. Therefore, there is no basis for plaintiffs to argue that the five additional days' "grace" for mailing does not apply to the 40-day limitation period set forth in rule 8.278(c)(1). Appellants have cited no authority which would so limit application of section 1013.

Moreover, defendant notes that section 1013 specifies three discrete exceptions to the mailing grace period, involving motions for new trial, motions to vacate judgments, and notices of appeal. "Under the standard rules of statutory construction, we will not read into the statute a limitation that is not there. [Citation.]' (People v. Bautista (2008) 163 Cal.App.4th 762, 777 . . .; see also Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 826 . . . [`it is not the court's place to insert words into [a] statute'].) Specifically, `"[u]nder the maxim of statutory construction, expressio unius est exclusio alterius, if exemptions are specified in a statute, we may not imply additional exemptions unless there is a clear legislative intent to the contrary. [Citation.]" [Citation.]' (Rojas v. Superior Court (2004) 33 Cal.4th 407, 424 . . . .)" (Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 430, 443.)

Because defendant filed its memorandum of costs and fees within the 45 day time allowed by rule 8.278(c)(1), as extended by section 1013, the defendants motion was timely filed.

The Motion to Strike should not survive because the defendant has Constitutional due process right that light most favorable to the moving party shall never be allowed to place the responding party in the shadow of a full eclipse.


________________________________
Friederich (Fritz) Koenig, in pro per

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