Second District, Division Four Sustains Use of Judicial Council Form As Proper.
Moghadam v. The Regents of the Univ. of Cal., Case Nos. B194314 & B196120 (2d Dist., Div. 4 Dec. 19, 2008) (certified for partial publication) involved an interesting issue of whether UC Regents’ refusal to allow inspection of student exams violated the Information Practices Act, Civil Code section 1798 et seq. Defendants won a summary judgment, with the trial court subsequently awarding costs of $9,032 out of a requested $13,242. Losing plaintiff moved to tax, with the trial court taxing interpreter fees of $4,210.
Plaintiff appealed both the merits and costs award, although he lost both challenges upon review. The costs award challenge was decided in an unpublished portion of the decision.
On appeal, plaintiff’s main challenges to the costs award were procedural in nature.
First, he argued the costs memorandum was improperly verified—even though submitted on a Judicial Council form—because it was not verified under penalty of perjury. The appellate court disagreed, observing that California Rules of Court, rule 3.1700(a)(1) only requires a “statement of the party, attorney, or agent that to the best of his or her knowledge the terms of costs are correct and were necessarily incurred in the case.” Fortunately, the Judicial Council form tracks this language. Although the verification may be made by certification under penalty of perjury, it is not an essential requirement.
Second, plaintiff contended that rule 3.1700 was unconstitutional in not requiring verification under penalty of perjury. He specifically argued that rule 3.1700 was void because it was inconsistent with Code of Civil Procedure section 446 (pleadings must be “subscribed”) and section 2015.5 (any matter required or permitted to be evidence by a sworn statement may be supported by an unsworn statement made under penalty of perjury). The flaw in this argument is that neither provisions requires verification under penalty of perjury, i.e., section 446 only requires pleadings to be “subscribed” (not verified) and section 2015.5 allows for a sworn statement (not a verification). Beyond this, rule 3.1700 was codified under the express statutory authorization of Code of Civil Procedure section 1034, such that there is no facial inconsistency between the rule and empowering statute. Finally, in opposition to the motion to tax, one of defendants’ attorneys submitted a declaration under penalty of perjury indicating that attached invoices were “true and correct copies” of incurred costs—fully compliant even under plaintiff’s “penalty of perjury” stance (which is not the law).
BLOG “HELLO”—Co-contributor Mike Hensley noticed that Cynthia A. Vroom was one of the winning appellate attorneys on behalf of UC Regents and nine of its officers. Mike worked with Cindy at Irell & Manella in the early 1990s, and sends season greetings to Ms. Vroom.