Costs Award Affirmed, With Appearance Fee In Motion to Quash Proceeding Properly Awarded.
Plaintiffs were bummed when the lower court awarded $23,750.12 in costs to some defendants winning a motion to quash based on lack of personal jurisdiction. They appealed, mainly arguing that defendants exceeded the 15 day deadline for filing a costs memorandum set forth in California Rules of Court, rule 3.1700(a)(1)) and that the lower court erred in awarding appearance fees costs to the prevailing defendants.
The Second District, Division 1, in a 3-0 opinion authored by Justice Johnson in Hollander v. XL London Market Ltd., Case No. B229004 (2d Dist., Div. 1 Oct. 3, 2012) (unpublished), rebuffed these challenges and sustained the costs award.
With respect to the deadline argument, the appellate court did note the existence of two camps of thought: those enforcing the time limits of rule 3.1700 strictly (Russell v. Trans Pacific Group, 19 Cal.App.4th 1717, 1726 (1993); Nazemi v. Tseng, 5 Cal.App.4th 1633, 1641 (1992)) and others taking a more lenient approach where a violation was technical and no prejudice stemmed from the violation (Gunlock Corp. v. Walk on Water, Inc., 15 Cal.App.4th 1301, 1304-1305 (1993) and cases cited therein). The panel adopted the Gunlock approach, especially finding it appropriate in the costs area (but suggesting in dicta that it may not prevail for attorney’s fees requests). Defendants costs memoranda filings, after a considerable stay, were only 90 days late and no prejudice was shown.
As to the claim that appearance fees are not recoverable, Government Code section 70612 does not authorize any exemption for paying them when a defendant moves to quash service, with a filing fee payment not constituting a general appearance. Given that the local Los Angeles Counter Superior Court requires a fee payment for filing a “first paper,” the cost was certainly reasonably necessary to the litigation and recoverable.