Trial Court Has Inherent Discretion to Strike Costs Memo on Due Process Grounds, Limited Reversal Does Not Necessarily Vacate Prior Costs Award, and Post-Remittitur Costs Are Allowed in Trial Court’s Discretion.
Although it might put you to sleep to recount the unusual procedural setting of the next case, Apex Wholesale, Inc. v. Fry’s Electronics, Inc., Case No. D054780 (4th Dist., Div. 1 Feb. 5, 2010) (unpublished) does have some interesting points to consider in challenging and defending costs memorandum filed by the prevailing party in litigation.
They are:
- Courts at any time have inherent, equitable power to grant relief from a judgment or order based upon “extrinsic fraud or mistake,” terms interpreted broadly to not require fraud/mistake in the strictest sense and terms interpreted as allowing a grant of relief where “papers were lost, stolen, forwarded to the wrong person or eaten by the dog.” (Sporn v. Home Depot USA, Inc., 126 Cal.App.4th 1294, 1301 (2005).) In this particular case, the lower court granted a motion to strike a costs memo almost a year after the memo had been filed, finding that the other party did not receive it. (BLOG OBSERVATION—Co-contributor Mike and his dog Riffle like the “eaten by the dog” reference, although Riffle likes biscuits rather than pleadings. However, co-contributor Marc does have a cat who likes to nibble on an occasional draft or pleading.)
- A limited reversal does not render a costs award automatically null and void, but rather requires a reconsideration by the trial court of the prevailing party issue. (Zagami, Inc. v. James A. Crone, Inc., 160 Cal.App.4th 1083, 1097 (2008).) In Apex Wholesale, the party moving to strike the costs memo conceded that one prior ruling was still in effect such that the lower and appellate courts did not have to reconsider the validity of that prior ruling on costs.
- A properly verified costs memo is prima facie evidence that the costs were necessarily incurred, with the burden on the costs opponent to show otherwise (including they were unreasonable). A party’s mere statements in points and authorities are insufficient to rebut the prima facie showing. (Jones v. Dumrichob, 63 Cal.App.4th 1258, 1266 (1998).)
- Messenger services can be recovered as reasonable post-remittitur costs, in the discretion of the trial court. (Ladas v. California State Auto. Assn., 19 Cal.App.4th 761, 774 (1993).)