Motion for Expenses
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Motion for Expenses
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Cynthia Coulter Mulvihill SBN 171909 HYDE MULVIHILL APC 216 W. Foothill Blvd PO Box 1007 Monrovia CA 91017-1007 (626) 358-7471/Fax: (626) 358-2894 e-mail: HollywoodPaws@cmsynergy.com
SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES
TO THE COURT AND TO DEFENDANTS AND THEIR ATTORNEY OF RECORD HEREIN:
Plaintiffs hereby move, pursuant to Code of Civil Procedure §415.30(d), for recovery of $578.80 in expenses incurred in personally serving, or trying to serve, Defendants BARBIZON SCHOOL OF SAN FRANCISCO, INC.; PETS ON CAMERA; LARRY LIONETTI; LENA LIONETTI; LENA MARIE LIONETTI; TAMMY BOWERS, KIMBERLY KLEINMAN and RAQUELLE VALLEJO, in this matter after Defendants failed to return the Acknowledgement of Receipt of Summons in accordance with Code of Civil Procedure §415.30. Individually, Plaintiffs seek the following: BARBIZON SCHOOL OF SAN FRANCISCO, INC., $80.00; PETS ON CAMERA, $91.55; LARRY LIONETTI, $65.75; LENA LIONETTI, $110.75; LENA MARIE LIONETTI, $46.95; TAMMY BOWERS, $32.95; KIMBERLY KLEINMAN, $117.90; and RAQUELLE VALLEJO, $32.95. Plaintiffs also respectfully request that this Court award them their filing fee for this motion $40, and their Court Call telephonic appearance fee of $40.
This Motion is based on this Notice of Motion; the Memorandum of Points and Authorities Submitted Concurrently Herewith; upon such Opposition as the Defendant may submit, and any reply thereto; the Court’s files herein; and upon such other oral argument as the Court may consider at the time of hearing.
Dated: January 3, 2007 HYDE MULVIHILL APC
______________________________________ Cynthia Coulter Mulvihill Attorney for Plaintiffs
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Plaintiffs filed their Complaint on September 11, 2006. Plaintiffs then served the Summons and Complaint on each Defendant by mail on September 18, 2006. No Defendant returned the Acknowledgement and Receipt, as required by Code of Civil Procedure §415.30. On October 11, 2006 Plaintiffs wrote to each Defendant and asked them to comply with Code of Civil Procedure §415.30. Defendants did not. Plaintiffs then personally served the Summons and Complaint.
Plaintiffs therefore request that this Court award them $578.80, the total cost of personally serving the Defendants in this matter. Plaintiffs also request its $40 filing fees for this Motion, as well as its $40 Court Call appearance fee, for a total of $658.80.
II. BRIEF STATEMENT OF THE FACTS RELEVANT TO SERVICE OF PROCESS
Plaintiffs filed their Complaint September 11, 2006. The Court Clerk concurrently issued a Summons. Plaintiffs decided to serve the Summons and Complaint by mail to avoid embarrassing any of the Defendants, and to keep the cost of serving ten Defendants to a minimum. On September 18, 2006, Plaintiffs served the Summons and Complaint, Civil Case Cover Sheet, Civil Case Cover Sheet Addendum, and the Alternative Dispute Resolution Package by mail on all of the Defendants, in accordance with Code of Civil Procedure §415.30.
Plaintiffs never received any signed Acknowledgements and Receipts from BARBIZON SCHOOL OF SAN FRANCISCO, INC.; PETS ON CAMERA; LARRY LIONETTI; LENA LIONETTI; LENA MARIE LIONETTI; TAMMY BOWERS, KIMBERLY KLEINMAN or RAQUELLE VALLEJO. However, HOLLYWOOD PAWS LLC did generally appear in the action by propounding Form Interrogatories on the Plaintiffs around October 2, 2006.
On October 11, 2006, Plaintiffs wrote to each Defendant who had not responded and asked them to comply with Code of Civil Procedure §415.30 by returning the signed Acknowledgement and Receipts by October 16, 2006.
HOLLYWOOD PAWS, LLC’S attorney, Peter Clinco, told Plaintiffs that he was not authorized to accept service for any other Defendant. Plaintiffs then gave the Summons and Complaints and accompanying documents to registered California process servers ALSSI.
The total cost of personally serving the Defendants was $578.80. Individually, the cost of service was: BARBIZON SCHOOL OF SAN FRANCISCO, INC., $80.00; PETS ON CAMERA, $91.55; LARRY LIONETTI, $65.75; LENA LIONETTI, $110.75; LENA MARIE LIONETTI, $46.95; TAMMY BOWERS, $32.95; KIMBERLY KLEINMAN, $117.90; and RAQUELLE VALLEJO, $32.95.
III. SUPPORTING LAW
Code of Civil Procedure § 415.30 (d) states, “If the person to whom a copy of the summons and of the complaint are mailed pursuant to this section fails to complete and return the acknowledgment form set forth in subdivision (b) within 20 days from the date of such mailing, the party to whom the summons was mailed shall be liable for reasonable expenses thereafter incurred in serving or attempting to serve the party by another method permitted by this chapter, and, except for good cause shown, the court in which the action is pending, upon motion, with or without notice, shall award the party such expenses whether or not he is otherwise entitled to recover his costs in the action.” See, e.g., Yarnell & Associates v. Superior Court (1980) 106 Cal. App. 3d 918, 921 and Thierfeldt v. Marin Hosp. Dist. (1973) 35 Cal. App. 3d 186, 199.
IV. CONCLUSION
Plaintiffs therefore respectfully request that this Court award them their expenses as follows: BARBIZON SCHOOL OF SAN FRANCISCO, INC., $80.00; PETS ON CAMERA, $91.55; LARRY LIONETTI, $65.75; LENA LIONETTI, $110.75; LENA MARIE LIONETTI, $46.95; TAMMY BOWERS, $32.95; KIMBERLY KLEINMAN, $117.90; and RAQUELLE VALLEJO, $32.95. Plaintiff also requests that this Court award $40, the filing fee for this Motion; and $40, the Court Call cost for Plaintiffs’ counsel’s telephonic appearance at the hearing on this Motion.
Dated: January 1, 2007 HYDE MULVIHILL APC
______________________________________ Cynthia Coulter Mulvihill Attorney for Plaintiffs
PROOF OF SERVICE BY MAIL (1013(a), 2015.5 C.C.P.)
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES:
I am employed in the aforesaid county, State of California; I am over the age of eighteen years and not a party to the within action; my business address is: 216 W. Foothill Blvd, PO Box 1007, Monrovia, CA 91016.
On January 3, 2007, I served the foregoing document described as: PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR EXPENSES OF $658.80 INCURRED IN PERSONALLY SERVING THE SUMMONS AND COMPLAINT UPON DEFENDANTS BARBIZON SCHOOL OF SAN FRANCISCO, INC.; PETS ON CAMERA; LARRY LIONETTI; LENA LIONETTI; LENA MARIE LIONETTI; TAMMY BOWERS, KIMBERLY KLEINMAN, AND RAQUELLE VALLEJO on the interested parties in this action by placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Monrovia, California, addressed as follows:
[XX] BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing, that the mail would be deposited with the United States postal service on that same day with postage thereon fully prepaid at Monrovia, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.
Peter Clinco Bar No 79008 Law Offices of Peter Clinco 1901 Avenue of the Stars Suite 1100 Los Angeles CA 90067-6002 Attorney for Defendants
[ ] BY FACSIMILE: The facsimile machine I used complied with Rule 2.301(3), and no error was reported by the machine. Transmission was sent from Fax No. (626) 358-2894 to all of the Fax Numbers of the parties listed above. Pursuant to Rule 2.301(6) I caused the machine to print a record of each of the parties, which includes the date and time transmitted.
I certify (or declare), under penalty of perjury under the laws of the State of California, that the foregoing is true and correct.
Executed on January 3, 2007, at Monrovia, California.
_________________________________ Sheral A. Hyde
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