First District, Division 4 So Rules Based on Inadequate Appellate Record
Many times before, we have counseled that an adequate appellate record is vital when seeking review of a lower court order/judgment by any federal or state reviewing court. That counseling was ignored in the next case, which means the appealing party was doomed.
In Tolbert v. Hines, Case No. 123221 (1st Dist., Div. 4 July 2, 2009) (unpublished), plaintiff was defensed in a construction defect case. The trial court awarded prevailing defendant routine costs of $4,798.96.
Plaintiff appealed the costs award, but was repulsed based mainly on an inadequate record.
The problem is that the prior underlying defense judgment was not mailed to defendant’s attorney of record, but to another attorney who had not formally appeared in the case. That meant that the normal 15-day deadline to file a costs memorandum for a properly served notice of judgment was extended to 180 days after entry of judgment. (Cal. Rules of Court, rule 3.1700(a)(1).) Under that standard, the costs memorandum was timely filed. Plaintiff failed to demonstrate error in this lower court ruling, because he failed to provide entry of judgment or other documents that would have shown a reason why the postjudgment order should be reversed.
So, yet again, make sure you develop an adequate appellate record, whether by careful initial filings or appellate augmentation procedures.