Judge: Robert B. Broadbelt, Case: 20STCV07916, Date: 2025-06-10 Tentative Ruling

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Case Number: 20STCV07916    Hearing Date: June 10, 2025    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant Xing Nelson         

RESPONDING PARTY:       Plaintiff The Law Firm of Fox and Fox

Motion to Tax Costs

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Defendant Xing Nelson (“Defendant”) moves the court for an order taxing the following costs requested by plaintiff The Law Firm of Fox and Fox (“Plaintiff”) in its Memorandum of Costs, filed on November 7, 2024: (1) $2,803.39 in filing and motion fees; (2) $85.00 in court ordered transcripts; (3) $2,433.85 in transportation, service, and lodging exhibits; and (4) $90 in service of process.

The court finds—and the parties do not dispute—that Plaintiff’s Memorandum of Costs was not timely filed.

“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.”  (Cal. Rules of Ct., rule 3.1700, subd. (a)(1).)

The court entered judgment in this action on October 10, 2024.  (Oct. 10, 2024 JUD-100.)  Also on that date, the court issued a minute order (1) stating that the court signed and entered judgment in this action, and (2) directing the clerk to serve copies of the court’s minute order, the court’s Statement of Decision, and the judgment on all parties in this action.  (Oct. 10, 2024 Minute Order, p. 1.)  The clerk mailed those documents to Plaintiff and Defendant on October 10, 2024.  (Oct. 10, 2024 Cert. of Mailing, p. 1.)  Because the October 10, 2024 minute order directed the clerk to serve copies of the judgment on all the parties to this action, the court finds that the October 10, 2024 mailing of the judgment to Plaintiff constituted “service of the notice of entry of judgment . . . by the clerk under Code of Civil Procedure section 664.5 . . . .”  (Cal. Rules of Ct., rule 3.1700, subd. (a)(1); Simgel Co., Inc. v. Jaguar Land Rover North America, LLC (2020) 55 Cal.App.5th 305, 314 [“a clerk’s notice of entry of judgment must state, in so many words, that it is given ‘upon order of the court’ or ‘under section 664.5’ in order to trigger the time to file a motion to vacate the judgment or for JNOV”].)

Thus, Plaintiff was required to serve and file its Memorandum of Costs no later than October 31, 2025 (i.e., 15 days from October 10, 2024 + 5 days for mailing).  (Cal. Rules of Ct., rule 3.1700, subd. (a)(1).)  Plaintiff did not file and serve its Memorandum of Costs until November 7, 2024 and therefore did not timely file its cost bill.  (Memo. of Costs, p. 2 [proof of service of mailing on November 7, 2024].) Plaintiff does not dispute that its Memorandum of Costs was not timely filed.  (Opp., p. 2:10-15.)  Instead, Plaintiff requests relief from this late filing pursuant to Code of Civil Procedure section 473, subdivision (b).  (Id., p. 2:19-23.)  

The court declines to exercise its discretion to grant Plaintiff’s request for relief under section 473, subdivision (b) because (1) it is not appropriate to grant affirmative relief that is raised in an opposition brief,[1] (2) the court finds that Plaintiff has not met its burden to establish mistake, inadvertence, surprise, or excusable neglect within the meaning of section 473, subdivision (b), and (3) although Plaintiff has attached a verification to its memorandum of points and authorities, Plaintiff did not submit a declaration and therefore did not submit competent evidence to support its request for relief.  (Code Civ. Proc., § 473, subd. (b).)  

Because Plaintiff’s memorandum of costs was not filed within the time required by California Rules of Court, rule 3.1700, the court grants Defendant’s motion to tax all the costs requested therein.  (Cal. Rules of Ct., rule 3.1700, subd. (a)(1).)

ORDER

            The court grants defendant Xing Nelson’s motion to tax costs.

            The court orders that the $5,412.24 in costs requested in the Memorandum of Costs filed by plaintiff The Law Firm of Fox and Fox on November 7, 2024, are taxed.

            The court orders defendant Xing Nelson to give notice of this ruling.

IT IS SO ORDERED.

DATED:  June 10, 2025

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court