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ACCIDENT, INJURY AND MEDICAL MALPRACTICE E-FILED
ATTORNEYS OF CALIFORNIA, APC 4/23/2019 12:10 PM
Jefiey D. Bohn, (SBN: 243870) Superior Court of California
2445 Capitol Sheet, Suite 105
Fresno, CA 93 721 County of Fresno
Telephone: (559) 485-1212 By: M. Sanchez, Deputy
Facsunile: (559) 485-1210
Attorneys for Plainfifl‘
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF FRESNO
IO
1| JOSE SANCHEZ, Case No.2 18CECG04143
12
Plaintiffs, REPLY MEMORANDUM IN SUPPORT
13 vs. OF MOTION TO RECOVER COSTS OF
SERVICE
l4 BA VANG, et al.,
Vvvvvvvvvvvv
Date: May 1, 2019
IS
Defendants. Time: 3:30 p.m.
16 Dept: 403
l7 Hon. Rosemary McGuire
18
19 I. INTRODUCTION
20 The operative statute provides for a mandatory — not a discretionary — award of expenses
2] incurred for service ofprocess under the facts ofthis case, where Defendant has not provided a
22 valid reason for failing to return the notice and acknowledgement of receipt.
23 II. LEGAL ARGUMENT
24 A. The “Procedural Defect” Raised by Defense Counsel Is Moot
25 On March 22, 201 9, Plaintiff served and filed a notice of errata to correct the
26 typogaphical error in Plaintiff’s counsel’s declaration. (Bohn Reply Decl., 2 .) Plaintiff‘s
1]
27 counsel also concurrently served and filed the corrected declaration. (Ibid.)
28
l
Reply Memorandum in Support of Motion to Compel Answers to Discovery and for Sanctions
On April 2, 2019, Plaintiff re-served Defendant with the entire motion and corrected
declaration to moot any claims of a “procedural defect” fiom Defendant. (Bohn Reply Decl., 1]
3.) The motion, with amended declaration, was re-served more than 16 court days (plus five
days for mailing) prior to the hearing. (Ibid.)
B. Right to Recover Costs as Prevailing Party Under C.C.P. §§ 1032 and 1033.5
Does Not Eviscerate C.C.P. § 415.30 - These Code Sections Work in
anjunction with Each Other
Defendant appears to argue that we should ignore Section 41 5.30, since the prevailing
party may ultimately recover costs of service under Sections 1032 and 1033.5. Defense counsel
10
may have resigned Defendant to ultimate defeat at this early stage, but this still fails to
ll recognize that Section 41 5.30 entitles Plaintiff to recover costs of service regardless of the
12 outcome. Section 415.30 (d) provides:
13 If the person to whom a copy of the summons and of the complaint are mailed
pursuant to this section fails tocomplete and return the acknowledgement form
l4
set forth in subdivision (b) within 20 days fi'om the date of such mailing, the party
‘
15 to whom the summons was mailed shall be liable for reasonable expenses
thereafier incurred in serving or attempting to serve the partyby another method
16 good
this chapter, and, except for cause shown, the court in Which
permitted by
the action is pending, upon motion, with or without notice, shall award the party
l7
such expenses whether or not he is otherwise entitled to recover his costs in
l8 the action. [emphasis added.]
l9 Also, Section 415.30 is desigled t0 snare the defendant fiom costs of service. Given that
20 Sections 1032 and 1033.5 permit the prevailing party to recover costs of service, Section 41 5.30
2] gives Defendant the opportunity to avoid paying these costs should Plaintiff prevail. Wei] &
22 Brown describes the purpose of Section 41 5.30 thusly:
23 The notice form 4:232) gives defendants the chance to avoid the costs
(1]
involved in effecting service by some other method. Therefore, if they fail to sign
24
and return the acknowledgnent within 20 days afler it is mailed, they become
25 liable for Whatever costs plaintiff incurs in effecting service by some other
method—regardless of the outcome of the lawsuit. I.e., even if defendants win the
26 case, they will have to reimburse plaintiff for the costs incurred in serving the
summons and complaint. [CCP § 415.30(d)]
27
28
2
Reply Memorandum in Support of Motion to Compel Answers to Discovery and for Sanctions
(Weil & Brown, Cal. Practice Guide: Civil Procedure Before trial (The Rutter Group 201 8)
M
1]
4:240.) So, Plaintiff gave Defendant the opportunity to those costs of service recoverable
under Sections 1032 and 1033.5 by signing and returning the notice and acknowledgment of
receipt. However, he failed to do so.
C. Defendant Failed to Offer Competent Evidence of Good Cause for Escaping
Liability for Plaintiffs’ Costs 0f Service
Cooper failed to submit a declaration fiom Defendant Pether disputing Plaintiff’s
amended declaration of compliance with the service requirements of Section 41 5.30. And, n0
reason is given for Pether’s failure to return the signed Notice and Acknowledgment of Receipt.
Defendant simply failed to sign and return the Notice and Acknowledgment of Receipt.
The law is clear that an award of expenses is mandatory.
III.CONCLUSION
There was no need for Mr. Cooper t0 defend an indefensible position. Based on the
foregoing, Plaintiff respectfully requests that this Court award costs t0 Plaintiffs, for the
substitute service of the summons and complaint on Defendant Pether afier his refusal to
acknowledge service pursuant to Section 41 5.30, in the amount of $1 74.50, which includes the
skip trace fee of $1 14.50 and the service ofprocess fee of $39.50, this motion’s filing fee of
$60.00, and this motion’s mailing cost of $1 .42.
Dated: April 22, 2019
WM
ACCIDENT, INJURY AND MEDICAL MALPRACTICE
ATTORNEYS OF CALIFORNIA, APC
Jeffrey D. Bohn, Esq., for Plaintiff
26
27
28
3
Reply Memorandum in Support of Motion to Compel Answers to Discovery and for Sanctions
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ACCIDENT, INJURY AND MEDICAL MALPRACTICE E-FILED ATTORNEYS OF CALIFORNIA, APC 4/23/2019 12:10 PM Jefiey D. Bohn, (SBN: 243870) Superior Court of California 2445 Capitol Sheet, Suite 105 Fresno, CA 93 721 County of Fresno Telephone: (559) 485-1212 By: M. Sanchez, Deputy Facsunile: (559) 485-1210 Attorneys for Plainfifl‘ SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO IO 1| JOSE SANCHEZ, Case No.2 18CECG04143 12 Plaintiffs, REPLY MEMORANDUM IN SUPPORT 13 vs. OF MOTION TO RECOVER COSTS OF SERVICE l4 BA VANG, et al., Vvvvvvvvvvvv Date: May 1, 2019 IS Defendants. Time: 3:30 p.m. 16 Dept: 403 l7 Hon. Rosemary McGuire 18 19 I. INTRODUCTION 20 The operative statute provides for a mandatory — not a discretionary — award of expenses 2] incurred for service ofprocess under the facts ofthis case, where Defendant has not provided a 22 valid reason for failing to return the notice and acknowledgement of receipt. 23 II. LEGAL ARGUMENT 24 A. The “Procedural Defect” Raised by Defense Counsel Is Moot 25 On March 22, 201 9, Plaintiff served and filed a notice of errata to correct the 26 typogaphical error in Plaintiff’s counsel’s declaration. (Bohn Reply Decl., 2 .) Plaintiff‘s 1] 27 counsel also concurrently served and filed the corrected declaration. (Ibid.) 28 l Reply Memorandum in Support of Motion to Compel Answers to Discovery and for Sanctions On April 2, 2019, Plaintiff re-served Defendant with the entire motion and corrected declaration to moot any claims of a “procedural defect” fiom Defendant. (Bohn Reply Decl., 1] 3.) The motion, with amended declaration, was re-served more than 16 court days (plus five days for mailing) prior to the hearing. (Ibid.) B. Right to Recover Costs as Prevailing Party Under C.C.P. §§ 1032 and 1033.5 Does Not Eviscerate C.C.P. § 415.30 - These Code Sections Work in anjunction with Each Other Defendant appears to argue that we should ignore Section 41 5.30, since the prevailing party may ultimately recover costs of service under Sections 1032 and 1033.5. Defense counsel 10 may have resigned Defendant to ultimate defeat at this early stage, but this still fails to ll recognize that Section 41 5.30 entitles Plaintiff to recover costs of service regardless of the 12 outcome. Section 415.30 (d) provides: 13 If the person to whom a copy of the summons and of the complaint are mailed pursuant to this section fails tocomplete and return the acknowledgement form l4 set forth in subdivision (b) within 20 days fi'om the date of such mailing, the party ‘ 15 to whom the summons was mailed shall be liable for reasonable expenses thereafier incurred in serving or attempting to serve the partyby another method 16 good this chapter, and, except for cause shown, the court in Which permitted by the action is pending, upon motion, with or without notice, shall award the party l7 such expenses whether or not he is otherwise entitled to recover his costs in l8 the action. [emphasis added.] l9 Also, Section 415.30 is desigled t0 snare the defendant fiom costs of service. Given that 20 Sections 1032 and 1033.5 permit the prevailing party to recover costs of service, Section 41 5.30 2] gives Defendant the opportunity to avoid paying these costs should Plaintiff prevail. Wei] & 22 Brown describes the purpose of Section 41 5.30 thusly: 23 The notice form 4:232) gives defendants the chance to avoid the costs (1] involved in effecting service by some other method. Therefore, if they fail to sign 24 and return the acknowledgnent within 20 days afler it is mailed, they become 25 liable for Whatever costs plaintiff incurs in effecting service by some other method—regardless of the outcome of the lawsuit. I.e., even if defendants win the 26 case, they will have to reimburse plaintiff for the costs incurred in serving the summons and complaint. [CCP § 415.30(d)] 27 28 2 Reply Memorandum in Support of Motion to Compel Answers to Discovery and for Sanctions (Weil & Brown, Cal. Practice Guide: Civil Procedure Before trial (The Rutter Group 201 8) M 1] 4:240.) So, Plaintiff gave Defendant the opportunity to those costs of service recoverable under Sections 1032 and 1033.5 by signing and returning the notice and acknowledgment of receipt. However, he failed to do so. C. Defendant Failed to Offer Competent Evidence of Good Cause for Escaping Liability for Plaintiffs’ Costs 0f Service Cooper failed to submit a declaration fiom Defendant Pether disputing Plaintiff’s amended declaration of compliance with the service requirements of Section 41 5.30. And, n0 reason is given for Pether’s failure to return the signed Notice and Acknowledgment of Receipt. Defendant simply failed to sign and return the Notice and Acknowledgment of Receipt. The law is clear that an award of expenses is mandatory. III.CONCLUSION There was no need for Mr. Cooper t0 defend an indefensible position. Based on the foregoing, Plaintiff respectfully requests that this Court award costs t0 Plaintiffs, for the substitute service of the summons and complaint on Defendant Pether afier his refusal to acknowledge service pursuant to Section 41 5.30, in the amount of $1 74.50, which includes the skip trace fee of $1 14.50 and the service ofprocess fee of $39.50, this motion’s filing fee of $60.00, and this motion’s mailing cost of $1 .42. Dated: April 22, 2019 WM ACCIDENT, INJURY AND MEDICAL MALPRACTICE ATTORNEYS OF CALIFORNIA, APC Jeffrey D. Bohn, Esq., for Plaintiff 26 27 28 3 Reply Memorandum in Support of Motion to Compel Answers to Discovery and for Sanctions