Judge: Stephen Morgan, Case: 20AVCV00691, Date: 2023-07-11 Tentative Ruling
Department A14 Tentative Rulings
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Case Number: 20AVCV00691 Hearing Date: October 10, 2023 Dept: A14
Background
This is a motor vehicle –
personal injury action. Plaintiff Daniel Casillas (“Plaintiff”) alleges that on
December 03, 2018 on SR-14 Southbound on Antelope Valley Freeway, Defendant
Guadalupe Franco (“Franco”) was negligently operating a vehicle at an unsafe
speed and rear-ended Plaintiff’s vehicle, causing it to be pushed into a third
vehicle. Plaintiff further alleges that Defendants Pro Structural, Inc. (“Pro
Structural”) and Leasing LLC TREQ (“Leasing LLC”) breached their duties to
Plaintiff as (1) Franco was operating the vehicle in the scope of her
employment with Pro Structural, and (2) Pro Structural and Leasing LLC retained
Franco despite knowing of her unfitness to operate a vehicle and negligently
entrusted the vehicle to her. Plaintiff claims damages as a result of the
incident in the form of medical expenses and pain and suffering.
On September 29, 2020, Plaintiff
filed his Complaint alleging two causes of action for: (1) General Negligence,
and (2) Motor Vehicle.
On November 18, 2020, Defendants
Franco and Pro Structural (collectively “Defendants”) filed their Answer.
On March 22, 2023, Plaintiff
dismissed Leasing LLC without prejudice.
A jury trial occurred from March
29, 2023 to April 19, 2023, resulting in a judgment for Plaintiff against
Defendants.
Judgment was signed and filed on
May 03, 2023.
On May 18, 2023, Defendants filed
their Notice of Intent to Move for New Trial.
On May 19, 2023, Defendants filed
their Motion for New Trial, subsequently denied on July 11, 2023.
On May 23, 2023, Defendants filed
their Motion for Judgment Notwithstanding the Verdict (“JNOV”), subsequently
denied on July 11, 2023.
On June 12, 2023, Defendants
filed their Motion to Tax Costs, subsequently denied on July 11, 2023.
On July 27, 2023, Defendants
filed this Motion for Leave to File a Late Motion to Tax Costs.
No Opposition has been filed.
“All papers opposing a motion so noticed shall be filed with the court and a
copy served on each party at least nine court days. . .before the hearing.”
(Cal. Code Civ. Proc. § 1005(b).) “Section 1013, which extends the time within
which a right may be exercised or an act may be done, does not apply to a
notice of motion, papers opposing a motion, or reply papers governed by this
section.” (Ibid.) The hearing is set for October 10, 2023. Accordingly, an
Opposition was due by September 27, 2023. Should an Opposition be filed, it is
now untimely.
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Legal Standard
It
appears that this Motion for Leave to File a Late Motion to Tax Costs is, in
actuality, a Motion to Tax Costs. In the Memorandum of Points and Authorities, Defendants
present an argument regarding Cal. Code Civ. Proc. § 473(b) prior to the inclusion of their requests to
tax certain costs. The Court must consider statute, rules of court, and case
precedent related to Cal. Code Civ. Proc. § 473(b) and motions to tax costs before
it can address Defendants specific requests to tax costs. Due to the complexity
of the situation, the Court will incorporate its legal standards in the
discussion, infra.
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Discussion
Application – “Any
notice of motion to strike or to tax costs must be served and filed 15 days
after service of the cost memorandum. If the cost memorandum was served by
mail, the period is extended as provided in Code of Civil Procedure section
1013. If the cost memorandum was served electronically, the period is extended
as provided in Code of Civil Procedure section 1010.6(a)(4).” (Cal. Rules of
Court, Rule 3.1700(b)(1).)
Here, the cost memorandum was
served on May 23, 2023. Fifteen days from May 23, 2023 is Wednesday, June 07,
2023. The cost memorandum was served electronically. Cal. Code Civ. Proc. §
1010.6 provides “any period of notice, or any right or duty to do any act or
make any response within any period or on a date certain after the service of
the document, which time period or date is prescribed by statute or rule of
court, shall be extended after service by electronic means by two court days,”
excluding a notice of intention to move for new trial, a motion of intention to
move to vacate judgment under Section 663a, and a notice of appeal. (Cal. Code
Civ. Proc. § 1010.6(a)(3)(B).) With the two days prescribed by Cal. Code Civ.
Proc. § 1010.6, the Motion to Tax Costs needed to be filed by June 09, 2023.
Defendants filed their Motion to Tax costs on June 12, 2023.
Defendants concede that the
Motion to Tax is untimely, but seek relief under Cal. Code Civ. Proc. § 473(b).
The current Memorandum of Points and Authorities is nearly identical to that
submitted on June 12, 2023. Defendants rely on the same argument – relief is
mandatory under Cal. Code Civ. Proc. § 437(b) as the mistake was committed by Plaintiff’s
counsel, Brian S. Dewey, through excusable negligence.
The Court reiterates its analysis
regarding the mandatory provision of Cal. Code Civ. Proc. § 437 in its previous
Statement of Decision:
Second, unlike
Defendants’ presentation, the mandatory provision of Cal. Code Civ. Proc. §
437(b) is not applicable here. Cal. Code Civ. Proc. § 473(b)’s mandatory
provision applies only to defaults, default judgments, and dismissals. (See Shayan
v. Spine Care & Orthopedic Physicians (2020) 44 Cal.App. 5 167, 170
[“When lawyers make mistakes, they try to turn to subdivision (b) of section
473 for relief. This subdivision offers two kinds of relief. One is
discretionary. The other is mandatory. The mandatory provision is the one at
issue here.. . .the Urban decision basically ruled[]this statute means
what it says and says what it means, which resolves the issue: the statute
covers only defaults, default judgments, and dismissals. . .We agree with Urban
and the treatise. . .”]; The Urban Wildlands Group, Inc. v. City of Los
Angeles (2017) 10 Cal.App.5th 993 [overruling previous decisions applying
an expansive definition of “default” which allowed relief for judgments that
are the procedural equivalents of defaults, default judgments, or dismissals].)
(07/11/2023 Statement of Decision
pp. 18-19.)
Thus, the relief sought by
Defendants premised on the discretionary, not mandatory, provision of Cal. Code
Civ. Proc. § 473(b).
The Court also reiterates its
analysis regarding case precedent involving motions to tax costs:
A “ ‘failure to file
a motion to tax costs constitutes a waiver of the right to object.
[Citations.]’ ” (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289; Jimenez
v. City of Oxnard (1982) 134 Cal.App.3d 856, 859 [“ ‘[I]f a party to an
action against whom cost is awarded neglects within the time specified in
[former] section 1033 to apply to the court to have the same taxed, he is
deemed to have assented to the correctness and lawfulness of the items as
claimed in the verified memorandum of costs as filed ... .’ ”]; Davis Lumber
Co. v. Hubbell (1955) 137 Cal.App.2d 148, 151 [“When a cost bill is filed
it is not the duty of the clerk to determine the regularity of its filing. The
burden of attacking it rests upon the party who will have to pay the costs, and
if he fails to move within the time allowed he is ‘conclusively’ presumed to
have waived such irregularity.”]; San Francisco Unified School
District v. Board of National Missions (1954) 129 Cal.App.2d 236, 243
[same].) All cases emphasize that the time limit is mandatory. (Douglas,
supra, 27 Cal.App.4th 287, 290 [“The time limit is mandatory and failure
to timely file and serve a cost bill may result in waiver of costs.
[Citation.].”]; Jimenez, supra, 134 Cal.App.3d 856, 860 [holding
re: older version of Cal. Code Civ. Proc. § 133 – “By not filing said motion
within the period specified in section 1033, plaintiffs waived the right to
object to the costs claimed by the city. [Citation.]”]; Davis Lumber Co.,
supra, 137 Cal.App.2d 148, 151 [see ante]; San Francisco Unified
School District, supra, 129 Cal.App.2d 236, 243 [same].)
(Id. at p. 19.)
The time limit to file a motion
to tax cost is mandatory and Defendants have conceded that they filed such a
motion in an untimely manner. Defendants have waived their right to object to
the Memorandum of Costs.
Accordingly, the Motion for Leave
to File a Late Motion to Tax Costs is DENIED.
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Conclusion
Defendants Guadalupe Franco and
Pro Structural, Inc.’s Motion for Leave to File a Late Motion to Tax Costs is
DENIED.