Fourth District, Division One Also Finds Untimeliness Argument Waived, But Also Decides Merits in Favor of Costs Claimant.
California Rules of Court, rule 3.1700(a)(1) does contain a time deadline for filing and service of a costs memorandum after mailing of notice of entry of judgment or dismissal—15 days. The lower court has also discretion to extend the time for filing and servicing a cost memorandum for up to another 30 days if the parties do not agree to a specified extension. (See Cal.Rules of Court, rule 3.1700(b)(3).) However, a recent published decision holds that the lower court will be presumed to have granted the extension by granting costs under an untimely costs memorandum—without even a request by the cost claimant or an express statement by the lower court that the time is being extended.
Cardinal Health 301, Inc. v. Tyco Electronics Corp., Case No. D049623 (4th Dist., Div. 1 Dec. 15, 2008) (certified for publication) involved plaintiff Cardinal, which sued manufacturers of two parts for its MedStation product based on claimed defects in the manufactured spring probe connections. Cardinal won substantial awards from two component manufacturers after a jury trial, while defendant Remac was granted a nonsuit and later filed for recovery of trial costs through a costs memorandum. The time line went like this: (1) August 1—Remac served a file-stamped copy of the trial court’s nonsuit order on Cardinal; (2) August 29—Remac filed its cost memorandum; and (3) September 18—Cardinal files its motion to tax costs. The trial court granted Remac costs in the amount of $79,632.44. Cardinal cross-appealed, principally challenging the untimeliness of how Remac sought to recoup trial costs (i.e., its costs memo filing was 28 days out, about two weeks too late).
The Fourth District, Division One affirmed the costs award.
Initially, it found the untimeliness argument was waived because Cardinal never raised it in the trial court when moving to tax costs. (Yeung v. Soos, 119 Cal.App.4th 576, 583 (2004).)
However, the appellate panel went on to discuss the merits of the untimeliness argument, rejecting Cardinal’s challenge. The Court of Appeal inferred from the lower court’s grant of costs that it extended the filing deadline because rule 3.1700(b)(3) allowed the court to extend on its own motion. Nothing in the rule required a party to request an extension or required the court to specifically state it granted the extension.
Because the extension was only for two more weeks and the opponent showed no prejudice from the extension, the lower court did not abuse its discretion in awarding costs.
BLOG OBSERVATION—Would the same result occur had the untimeliness related to a motion for attorney’s fees under rule 3.1702? We bloggers would argue “no,” because the language in rule 3.1702(d) allows the trial court to extend “for good cause”—implying, to us, a motion or ex parte application demonstrating good cause (a requirement necessary for a trial continuance, albeit with more extensive factors to scrutinize). This “good cause” language is missing from the related costs CRC rule that was discussed in Cardinal Health.
BLOG BONUS COVERAGE—Cardinal Health also has interesting discussions on these UCC issues: (1) privity and the “direct dealings” exception; (2) statute of limitations and the “future performance” and repair tolling exceptions; and (3) UCC section 2607 reasonable notice requirements.