Deadlines: Nonprevailing Parties’ Failure To File A Timely Motion To Tax Costs After Entry Of Voluntarily Dismissal Was Not Excused Under CCP § 473

Case Law Was Not Ambiguous That No Entry of Judgment Was Needed When The Court Clerk Served A Notice Of Voluntary Dismissal.

            Tom v. Live Nation Entertainment, Inc., Case No. B308200 (2d Dist., Div. 7 Jan. 19, 2022) (unpublished) should remind all litigators to timely file a motion to tax costs, even prematurely doing so as to avoid a waiver of challenging costs.  What happened here is that plaintiffs voluntarily dismissed their lawsuit given a summary judgment tentative against them, with the clerk providing notice of the dismissal to the parties.  Thinking that there was a need for a formal judgment of dismissal, plaintiffs’ attorney did not timely file a motion to tax costs 15 days after the dismissal under CRC 3.1700(b)(1).  She filed a CCP § 473 motion for relief, which was denied by the lower court.  The 2/7 DCA affirmed.  Fries v. Rite Aid Corp., 173 Cal.App.4th 182 (2009) established that no judgment of dismissal was required after a notice of entry of voluntary dismissal was served when it came to the running of the 15-day deadline.  Attorney admitted she should have done some more research, and the appellate court found that her excuse was not reasonable. 

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