Third District Finds Defect Was Not Jurisdictional in Unpublished Decision.
California Rules of Court, rule 3.1700 contains provisions relating to deadlines and requirements for filing and serving costs memoranda by prevailing litigants. Some of the requirements are: (1) a verification about accuracy of costs must be based on the declarant’s knowledge; (2) the verification must be signed under penalty of perjury; (3) prevailing litigants must file and serve the costs memoranda (including the verification) within 15 days from entry of judgment; and (4) the lower court can extend the deadlines by a period not exceeding 30 days. The next case—an unpublished decision from the Third District—has an interesting discussion of how these rules interplay with each other where a trial judge has sustained objections to a timely filed costs memorandum verification but granted “leave” to file a subsequent verification that cured flaws and resulted in entry of a costs award.
Coursey v. Lomo Receiving Co., Inc., Case No. C057201 (3d Dist. Jan. 23, 2009) (unpublished) involved a trustee losing a partnership dispute with certain defendants after the trial judge granted defendants judgment under Code of Civil Procedure section 631.8. Defendants proceeded to file timely a costs memorandum requesting $5,734.51, although the Judicial Council form verification as to accuracy of costs was signed based on the attorney’s “knowledge and belief.” Plaintiff moved to strike the memorandum on the basis that rule 3.1700(a)(1) requires that the verification must be based on the attorney’s “knowledge” alone such that the additional “and belief” language rendered it incompetent based upon hearsay grounds. Not a bad objection, with the trial court sustaining it but giving defendants 10 days to “amend” through the filing of a proper verification. Defendants did so, and the trial court awarded all requested costs except for the taxed sum of $928.90. Plaintiff, being disgruntled by this turn of procedural events, appealed.
The Third District, in a 3-0 opinion authored by Justice Blease, affirmed.
Plaintiff argued that the costs memorandum was a nullity because it was not signed under penalty of perjury and the amended verification was filed well after the 30 day extension deadline allowed under rule 3.1700(b)(3). These procedural technicalities were not persuasive, Justice Blease found on behalf of the panel, because the original costs memorandum had been timely filed. This meant that defects in the verification could be corrected after the original time deadlines were exceeded.
Here is the logic employed by the Third District in reaching this result:
- Costs memoranda filing requirements are mandatory, but not jurisdictional in nature (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co., 223 Cal.App.3d 924, 929 (1990));
- Verification of costs memoranda analysis is similar to that employed with respect to verified complaints, with verified complaint irregularities capable of being cured by an amendment not impacting jurisdiction (United Farm Workers of America v. ALRB, 37 Cal.3d 912, 915 (1985) [complaint verification defect curable even after the running of the statute of limitations]); and
- The amendment to the costs memorandum verification “related back” to the filing of the original costs memorandum (which was timely filed).
BLOG UNDERVIEW #1—This decision may be helpful to lawyers and jurists on the Judicial Council. The current “knowledge and belief” language needs to be amended to take out the “and belief” problematic wording, if this unpublished opinion is any guide.
BLOG UNDERVIEW #2—We note that Presiding Justice Arthur Scotland was one of the concurring justices in this opinion. Because co-contributor Mike has good acquaintances with fellow dog walkers knowing this jurist (with his Labrador retriever Riffle figuring prominently in the equation as well as the blog theme of attorney’s fees being the “tail that wags the litigation dog”), he has heard that Justice Scotland will be retiring sometime this year and will be pursuing his quest to become a practicing Episcopal priest. We wish him luck, as well as commend him for his many years of dedicated service