Government Entity Entitled to Filing Fees as Costs, and Supplemental Memorandum Was Appropriately Filed.
The Fourth District, Division 3, in a tandem pair of decisions authored by Acting Presiding Justice Rylaarsdam, have confronted when governmental entities are entitled to recover filing costs even when no judgment is entered and that a costs memorandum does not have to exactly track the verification statute language to be valid in nature. The two cases are Hong v. Drake, Case No. G042565 (4th Dist., Div. 3 June 29, 2010) (unpublished) and Hong v. Grant, Case No. G042769 (4th Dist., Div. 3 June 29, 2010) (unpublished).
There, governmentally sued defendants apparently obtained a dismissal of actions brought by plaintiff at the pleading stages. They sought either trial or appellate costs as the prevailing party in the overall disputes. However, defendants used the Judicial Council costs memorandum forms that contain costs verification language “to the best of my knowledge and belief” rather than CRC 3.1700(a)(1) language “to the best of his or her knowledge.” The trial court denied plaintiff’s motions to tax costs on various grounds, prompting an appeal by plaintiff.
Upon review, the costs awards were affirmed.
Justice Rylaarsdam, on behalf of the appellate panel, found that no authority was cited for the proposition that the Judicial Council form had to exactly track the CRC language—with parties commonly using the form in real life practice. (Yes, indeed, jurists do look to the pragmatics of a situation.) Beyond that, there is case law showing that substantial compliance in this area will suffice (Pacific Southwest Airlines v. Dowty-Rotol, Ltd., 144 Cal.App.3d 491, 495 (1983); Fischbach and Moore Intern. Corp. v. Christopher, 987 F.2d 759, 762-763 (Fed.Cir. 1993)), with the Judicial Council language satisfying that standard.
Plaintiff then argued that the defendants could not recover costs because Government Code section 6103.5 does not allow recovery of costs because no judgment was entered in favor of the defense. However, the appellate court found costs were recoverable under the general Code of Civil Procedure section 1032 costs statutes notwithstanding what might be said in the Government Code. (Guillemin v. Stein, 104 Cal.App.4th 156, 164-166 (2002).) Defendants could recover their filing fees, because they were incurred albeit never paid because the government was involved.
Defendants did file a second costs memorandum with the precise CRC language, which plaintiff attacked as being untimely filed. The appellate court dismissed this argument by observing that it could be reviewed as a supplemental memorandum perfectly appropriate for acceptance in the lower court’s discretion. (Pacific Southwest Airlines, supra, 144 Cal.App.4th at 495.)
BLOG BONUS FOR APPELLATE PRACTITIONERS—Plaintiff requested appellate sanctions via motion for some transgressions by the defense, but this request was found to not be well taken by the appellate panel. Justice Rylaarsdam put it this way–“plaintiff has not cited any authority for an award of sanctions to a pro. per. lawyer,” citing among other cases Argaman v. Ratan, 73 Cal.App.4th 1173, 1180 (1999).