Judge: Daniel M. Crowley, Case: BC607182, Date: 2022-09-21 Tentative Ruling

Case Number: BC607182    Hearing Date: September 21, 2022    Dept: 28

Defendant Aminghasem Safarian’s Motion to Amend and Modify Civil Judgments

Having considered the moving and opposing papers, the Court rules as follows. 

BACKGROUND

On January 14, 2016, Plaintiffs Gladys Lopez-Duarte (“Lopez-Duarte”) and Evelin Murcia (“Murcia”) filed this action against Defendant Aminghasem Safarian (“Defendant”) for motor vehicle negligence.

On June 9, 2016, Defendant filed an answer.

On September 16, 2019, the case was called for trial. On September 27, 2019, the trial court found in favor of Plaintiffs.

On October 27, 2020, Defendant filed memorandum of costs against both Plaintiffs.

On August 4, 2022, Defendant filed a Motion to Amend and Modify Civil Judgments to be heard on September 21, 2022. On September 9, 2022, Plaintiffs filed an opposition. On September 15, 2022, Defendant filed a reply.

PARTY’S REQUESTS

Defendant requests the Court enter judgment as articulated in the previously submitted memorandum of costs. Defendant seeks to reduce Murcia’s judgment from $2,400.00 to $528.06 and Lopez-Duarte's from $5,450.00 to -$6,602.19 (owed to Defendant).

Plaintiffs request the Court deny the motion.

LEGAL STANDARD

Code of Civil Procedure Section 473(d): "The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order."

CRC 3.17000(a)(1): “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.”

DISCUSSION

Judgments were entered in this matter in favor of Plaintiffs and against Defendant on August 13, 2020.  On September 9, 2020, the Court’s clerk mailed Defendant’s counsel Notices of entry of the judgments in favor of Plaintiff.  Defendant then had 15 days after the date of service to file a memorandum of costs.  (California Rules of Court, rule 3.1700(a)(1).)  Defendant did not file memorandums of costs until October 27, 2020, 48 days later.  Plaintiff took no action in response.  Defendant now seeks to modify the judgment to account for the costs asserted.  Plaintiff opposes.  Defendant argues that by not filing an objection or motion to tax costs in response to the tardy memorandum, Plaintiffs have waived their right to object to costs.

Defendant’s memorandum of costs was served far outside the deadline provided by the California Rules of Court.  The time limit is mandatory and failure to timely file and serve a cost bill constitutes a waiver of costs. Hydratec, Inc. V. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 CA3d 924, 929.

Defendant also argues that notice of entry of judgment did not actually occur until October 26, 2020. This is incorrect. The Court clerk mailed notice of entry of judgment pursuant to Code of Civil Procedure section 664.5 on September 9, 2020.  Defendant argues that this does not constitute notice of entry of judgment, but rather Defendant’s October 26, 2020, mailing reflects the actual notice of entry of judgment. The Court disagrees. Defendant states that the Court sent the entry of judgment so that Defendant could then serve notice of entry of judgment. This effectively means that Defendant could have sat on the judgment without triggering the 15-day deadline all the way out to 180 days from entry of judgment. Defendant received notice from the clerk of the entry of judgment, triggering the 15-day deadline—Defendant should have filed the memorandum of costs based on the date that notice was provided. The Court denies the motion.

CONCLUSION

Defendant Aminghasem Safarian’s Motion to Amend and Modify Civil Judgments is DENIED.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.