Judge: Robert B. Broadbelt, Case: BC635651, Date: 2023-03-23 Tentative Ruling

Case Number: BC635651    Hearing Date: March 23, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Manuel Garcia and Maria Garcia

RESPONDING PARTY:       Plaintiff John Merino

Renewed Motion to Vacate Costs

The court considered the moving and opposition papers filed in connection with this motion.  No reply papers were filed.

DISCUSSION

Defendants Manuel Garcia and Maria Garcia (“Defendants”) move the court for an order vacating an award of prejudgment costs, “other than attorney’s fees,” payable to plaintiff John Merino (“Plaintiff”) pursuant to Code of Civil Procedure section 473, subdivision (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.”  (Code Civ. Proc., § 473, subd. (d).)

The court finds that there is no judgment or order awarding prejudgment costs to set aside or correct, and therefore denies Defendants’ motion.

Defendants primarily assert that Plaintiff is not entitled to an award of costs under Code of Civil Procedure section 761.030, which provides that, “[i]f the defendant disclaims in the answer any claim, or suffers judgment to be taken without answer, the plaintiff shall not recover costs.”  (Code Civ. Proc., § 761.030, subd. (b).)  Alternatively, Defendants contend that Code of Civil Procedure section 585 precludes an award of prejudgment costs.

However, Defendants have not identified any judgment or order awarding Plaintiff costs.  Plaintiff filed a Memorandum of Costs (Summary) on July 26, 2019, and Defendant acknowledges that Plaintiff served the Memorandum of Costs on July 16, 2019.  (Motion, p. 2:6-9.)  Any notice of motion to strike or tax costs was required to be served and filed by Defendants 15 days after service of the memorandum.  (Cal. Rules of Ct., rule 3.1700, subd. (b)(1).)  If this period of time has passed, “the clerk must immediately enter the costs on the judgment.”  (Cal. Rules of Ct., rule 3.1700, subd. (b)(4).)  

Although Defendants did not timely file a motion to strike or tax the memorandum of costs, it does not appear that the clerk has entered the costs on the judgment.  Neither party has identified a judgment or order awarding costs to Plaintiff in this action.  The July 10, 2019 “Default Judgment Against Defendants Manuel Garcia and Maria Garcia” does not award any costs to Plaintiff.  Instead, the language awarding Plaintiff reasonable attorney’s fees and costs was stricken from the judgment.  (July 10, 2019 Default Judgment, p. 4, ¶ 3.) 

Further, the court has not awarded any costs to Plaintiff.  In the court’s March 24, 2021 order granting Plaintiff’s motion for attorney’s fees, the court ordered only that Plaintiff “shall recover attorney’s fees in the amount of $84,957.50” from Defendants. [1]  (Mar. 24, 2021 Order, p. 9:4-5 [emphasis added].)  The March 24, 2021 order did not include an award of costs.  (Ibid.)

Thus, because there is no judgment or order awarding costs to Plaintiff, there is no judgment or order to correct or set aside as void.  (Code Civ. Proc., § 473, subd. (d).)  The court therefore denies Defendants’ motion, without prejudice to seeking any appropriate relief in the event that a judgment or order awards costs to Plaintiff.

ORDER

The court denies defendants Manuel Garcia and Maria Garcia’s renewed motion to vacate costs without prejudice.

The court orders plaintiff John Merino to give notice of this ruling.

IT IS SO ORDERED.

DATED:  March 23, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court