Opinion
B191942
12-14-2006
THE PEOPLE ex rel. BILL LOCKYER, as Attorney General, etc., Plaintiff and Respondent, v. MORSE MEHRBAN, Defendant and Appellant.
Law Offices of Morse Mehrban and Morse Mehrban, in pro. per., for Defendant and Appellant. Bill Lockyer, Attorney General, Thomas Greene, Chief Assistant Attorney General, and Edward G. Weil, Deputy Attorney General, for Plaintiff and Respondent.
Morse Mehrban (appellant) appeals from a postjudgment order denying his motion to strike an untimely memorandum of costs. We affirm.
BACKGROUND
In April 2005, the Attorney General (respondent) filed an action against appellant and Consumer Cause, Inc. under Business & Professions Code section 17200, alleging that the defendants failed to comply with Health and Safety Code section 25249.7. Specifically, respondent alleged that the defendants failed to comply with the laws requirement to report to the Attorney General the final entry of judgment or notice of dismissal in 22 Proposition 65 cases that were filed by Consumer Cause, Inc. The trial court found that appellant, as attorney for Consumer Cause, Inc., was jointly and severally liable for 20 of the 22 violations alleged. The trial court entered judgment against appellant on January 19, 2006, and the notice of entry of judgment was served on January 25, 2006. The judgment was affirmed on appeal by this court in a nonpublished opinion (The People ex rel. Bill Lockyer, as Attorney General, etc. v. Morse Mehrban (Aug. 4, 2006, B189286) [nonpub. opn.]).
Pursuant to California Rule of Court, rule 870 (rule 870), a memorandum of costs must be filed within 15 days of the date of service of written notice of the entry of judgment. Therefore, respondents memorandum of costs should have been filed by February 9, 2006. Instead, it was filed on March 7, 2006, 26 days late. Appellant filed a motion to strike, or in the alternative, to tax costs on the grounds that the cost bill was filed late. Respondent opposed the motion. In support of its opposition, respondent filed a declaration from counsel explaining that the late filing was due to mistake and inadvertence.
At the hearing on the motion, the court issued a tentative ruling denying appellants motion. The court found that respondent "made a showing of reasonable excuse and inadvertence" and that there was "no showing of prejudice" by appellant. Appellant waived oral argument and submitted on the courts tentative decision. On May 10, 2006, the trial court entered an order denying appellants motion to strike and/or tax the costs. This appeal followed.
DISCUSSION
I. Standard of Review
Appellant contends that this appeal presents a pure question of law. He points out that the facts are not in dispute and argues that the trial courts denial of his motion resulted from an erroneous interpretation of rule 870.
Our review of the record reveals that the trial courts decision did not result from an erroneous interpretation of rule 870. The courts tentative decision, which became its final decision after the parties waived argument, illustrates the courts understanding of rule 870 as setting forth a mandatory time limitation for the filing of a memorandum of costs. The courts denial of appellants motion to strike was not based on the language of rule 870, but was grounded in case law allowing the trial court to grant relief from failure to file a timely memorandum of costs upon a showing of reasonable excuse and diligence. (See Nutting v. Herman Timber Co. (1963) 214 Cal.App.2d 650, 659; Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 380-381 (Pollard) [affirming the trial courts broad discretion to grant relief from failure to timely file a cost bill].)
We agree with the trial courts determination that it had broad discretion to grant respondent relief from the consequences of the late filing of its bill of costs. We therefore review the trial courts ruling for abuse of discretion. Under this standard, a trial courts ruling will not be disturbed except on a showing that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1419; see also LeDeit v. Ehlert (1962) 205 Cal.App.2d 154, 170 [trial court did not abuse its discretion in refusing to strike a cost memorandum filed 22 days late where there was no showing of prejudice to the opposing party].)
II. The trial court did not abuse its discretion in denying appellants motion to strike
Appellant argues that the trial court had no discretion to deny his motion to strike. He cites case law which explains that rule 870 is mandatory and that failure to timely file and serve a cost bill can result in a waiver of costs. (See Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 426 [reversing trial courts award of costs where memorandum was untimely filed and the party seeking costs made no claim of mistake or inadvertence]; Hydratec, Inc. v. Sun Valley 260 Orchard and Vineyard Co. (1990) 223 Cal.App.3d 924, 927-928 [defendants failure to file a cost bill or otherwise draw the attention of the court to the issue of costs was fatal to its claim for costs]; Sepulveda v. Apablasa (1938) 25 Cal.App.2d 381, 388-389 [trial court erred in denying appellants motion to strike one item of costs where the item was inserted in the judgment without notice to appellants or the filing of a memorandum of costs].)
None of the cases cited by appellant presents a situation where, as here, the party seeking costs filed an untimely memorandum of costs and subsequently sought relief from the consequences of the untimely filing on the grounds of inadvertence or mistake. The cases cited by respondent do present such a situation, and support respondents position that under these circumstances, the trial court may, within its discretion, award costs. In Pollard, supra, 12 Cal.3d at pages 380-381, for example, the Supreme Court affirmed an award of costs where the defendants moved for permission to file a late cost memorandum. The defendants asserted that due to the press of other matters, counsel had inadvertently failed to file the memorandum in a timely fashion. In affirming the trial courts award of costs, the Pollard court noted that there was no showing of prejudice and the trial court did not abuse its discretion. Similarly, in LeDeit v. Ehlert, supra, 205 Cal.App.2d at page 170, the Court of Appeal, First Appellate District, affirmed the trial courts decision to allow a late filed memorandum of costs where counsel for the requesting party testified that he mistakenly believed that the running of time was stayed and further indicated that he was in the process of closing out his offices. The LeDeit court found that no abuse of discretion was apparent from the record and further noted that appellants offered no showing that the 22-day delay caused them prejudice.
Appellant does not assert that the delay in the filing of respondents memorandum of costs caused him prejudice. While appellant correctly asserts that rule 870 is mandatory, well-established case law indicates that the trial court has broad discretion to grant relief from a delay that is based on mistake or inadvertence.
Appellant argues that such relief may only be granted if the dilatory party files a motion for relief from its inadvertence under Code of Civil Procedure section 473. Respondent points out that appellant failed to make this argument to the trial court, therefore has waived the issue on appeal. (See People ex. rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 46 [reliance on a new theory as a basis for late petition was not properly cognizable on appeal].) We agree that appellant should have made this argument to the trial court, thus giving respondent an opportunity to address the issue and take corrective action. In addition, we note that appellant has failed to cite any law which sets forth a rule requiring that relief from rule 870 must come in the form of a motion pursuant to Code of Civil Procedure section 473 rather than in an opposition to a motion to strike.
We conclude that the trial court did not abuse its discretion in denying appellants motion to strike respondents costs. There is no showing that appellant was prejudiced by the delay, and the trial court had broad discretion to grant respondent relief on the grounds of inadvertence and mistake.
DISPOSITION
The order is affirmed.
We concur:
BOREN, P.J.
DOI TODD, J. --------------- Notes: A postjudgment order which awards or denies costs or attorneys fees is separately appealable. (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46; Code Civ. Proc., § 904.1, subd. (a)(2).)