Filed 9/5/19 Sahota v. Geringer CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

SOHAN S. SAHOTA et al.,

Plaintiffs and Appellants,

v.

STEVEN A. GERINGER,

Defendant and Respondent.

F075689

(Super. Ct. No. CVM014186)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Merced County. Donald J. Proietti, Judge.

P. Fateh K. Sahota for Plaintiffs and Appellants.

Steven A. Geringer, in pro. per., for Defendant and Respondent.

-ooOoo-

Appellants Sohan S. Sahota and Bhupinder K. Sahota appeal from the denial of their motion to strike respondent Steven Geringer’s memorandum of costs following the resolution of their underlying litigation. For the reasons set forth below, we conclude the filing should have been struck. While the trial court had the authority to permit the filing, the parties did not properly request the court utilize that authority, resulting in the trial court abusing its discretion.

FACTUAL AND PROCEDURAL BACKGROUND

This case arose following a legal malpractice dispute. Appellants were originally sued in two separate lawsuits over certain construction work they were hired to complete. For representation, they, in turn, hired respondent whom they later accused of malpractice. Appellants’ malpractice lawsuit contained three counts in two causes of action. In the first cause of action (claim one), there were two counts of malpractice covering each of the two cases. In the second cause of action (claim two), there was an alleged breach of fiduciary duty. Respondent counterclaimed for unpaid fees.

The case was winnowed down slightly before proceeding to a bench trial. Following that trial, the court issued a written statement of decision finding respondent liable to appellant Sohan S. Sahota on count 2 of claim one, a malpractice claim, and awarding him $17,381.31 in damages, plus $9,566.86 in prejudgment interest, for a total of $26,948.17. The court found for respondent on all remaining counts and claims and awarded him $2,555.94 for his unpaid legal services.

On September 23, 2016, the court entered judgment. The judgment found appellant Sohan S. Sahota was the prevailing party without specifying counts or claims, and that respondent was the prevailing party over appellants on his counterclaim. On October 3, 2016, appellants filed a notice of entry of judgment and served it on respondent. Then, on October 6, 2016, appellants submitted a memorandum of costs, totaling $5,893.15.

Respondent, for his part, attempted to file a letter with the court on October 13, 2016. This letter argued the judgment filed was incorrect given that appellant Bhupinder K. Sahota did not recover any relief from respondent. Attached to this letter was a proposed judgment and a memorandum of costs, totaling $5,051.01. This attempted filing was rejected by the court clerk, who informed respondent that the judge had determined respondent’s request required a motion. As a result, no memorandum of costs was filed at that time.

On November 29, 2016, respondent filed a motion, relying on Code of Civil Procedure section 128, subdivision (a)(8), to amend the judgment to conform to the court’s prior written statement of decision. In his brief, respondent argued the prior judgment implicitly, but not explicitly, recognized his victories on the malpractice claims, but that his cost filing was rejected, necessitating modification. The court ultimately granted this motion and ordered the original judgment be amended nunc pro tunc, adding respondent as a prevailing party on count 1 of claim one and on claim two.

Following this ruling, on January 25, 2017, respondent filed a new memorandum of costs totaling $5,241.81. Appellants moved to strike this filing, arguing it was untimely under California Rules of Court, rule 3.1700(a)(1). The trial court denied this motion, leading to the present appeal.

DISCUSSION

The dispute in this case turns on whether respondent was legally authorized to file his memorandum of costs after a nunc pro tunc modification of the prior judgment under section 128, subdivision (a)(8). We conclude he was not.

Standard of Review and Applicable Law

“Under the provisions of California Rules of Court, … a prevailing party must serve and file a memorandum of costs within one of the applicable alternative time limits set out in the rule.” (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 927–928, fn. omitted (Hydratec).) Relevant to this case, under California Rules of Court, rule 3.1700(a)(1), “[a] prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment.”

A prevailing party is generally entitled to their costs. (§ 1032.) “The court’s duty to award costs to the party entitled to them under [section] 1032 is ministerial. [Citation.] The statutory right to costs is not lost by virtue of the court’s neglect or error. Such neglect or error may be corrected by the trial court. [Citations.] Thus, to the extent the cost provisions of the instant judgments violated [section] 1032, the trial court was authorized to correct the judgments to reflect the statutory command, in the same manner it was empowered to remedy any other clerical error in the judgments.” (Hydratec, supra, 223 Cal.App.3d at p. 928.)

Under section 128, subdivision (a)(8), the court has the power to “amend and control its process and orders so as to make them conform to law and justice.” Under section 473, subdivision (b), the court “may, upon any terms as may be just, relieve a party … from a judgment … taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Under subdivision (d) of the same section, the court may upon “its own motion, correct clerical mistakes in its judgment.”

We generally review a trial court’s decision to tax or strike costs for an abuse of discretion. However, “because the right to costs is governed strictly by statute [citation] a court has no discretion to award costs not statutorily authorized.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) To the extent the court’s authority turns upon interpreting the authorizing statutes, such interpretation is a question of law reviewed de novo. (See Vidrio v. Hernandez (2009) 172 Cal.App.4th 1443, 1452.)

The Trial Court Lacked Authority To Accept Respondent’s Memorandum of Costs

It is important at the outset to identify what is not contested versus what is at issue. The parties do not meaningfully dispute that the trial court’s written statement of decision ultimately matches its amended judgment. Nor do they dispute the fact that the trial court had authority to modify the judgment entered on the nunc pro tunc basis it utilized. Rather, the parties differ on how to reconcile the fact that respondent filed a memorandum of costs roughly 100 days after the effective date of the nunc pro tunc amendment, but less than the statutorily required 15-day deadline if counting from the actual date of that modification.

Appellants argue this case is governed by Hydratec. We agree. In Hydratec, the court was faced with a costs and fee dispute following three separate cases that had been consolidated, at a minimum, for the purposes of trial. (Hydratec, supra, 223 Cal.App.3d at p. 926.) At trial, one of the defendants prevailed in two actions but not in the third. (Ibid.) This defendant failed to file a timely memorandum of costs. On appeal, it argued it had not been identified as a prevailing party in the judgment that had been prepared by opposing counsel and signed by the court and thus could not have filed below. (Id. at pp. 926–927.) The court, relying on an analogous case, rejected this claim and explained that there was a process by which one could overcome a flawed judgment and still comply with the mandatory deadlines for filing a request for costs—timely file the memorandum of costs. (Id. at p. 928.) Disputes over taking those costs, or striking them, could then be considered upon a proper motion. (Ibid.) Relevant to this case, in such a scenario a nunc pro tunc modification of the flawed judgment would still allow for consideration of costs because the memorandum of costs would remain timely filed.

Similar to Hydratec, no timely memorandum of costs was filed in this case. While respondent suggests he attempted to initiate such a filing, the record does not support this claim. Although a potentially timely filed memorandum of costs is in the record, it is provided as an attachment to a separate letter requesting modification of the allegedly flawed judgment. This request was rejected by the court on the ground that it required a formal motion. The filing does not indicate respondent attempted to separately file a memorandum of costs and was denied by the court, but rather appears to show respondent believed he could not file one absent a modification of the judgment—a debatable point itself given that respondent was identified as a prevailing party on his counterclaim. Absent excusing this failure, then, the court lacked authority under California Rules of Court, rule 3.1700(a)(1), to award costs to respondent because respondent failed to meet the mandatory filing requirements for such an award.

We thus turn to whether respondent’s failure was excused by the trial court. We note that the court does have the authority to excuse an untimely filing under section 473, if it arises due to such things as an attorney’s inadvertent failure to file or other excusable neglect. (See Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1199 [discussing scope of authority].) The record here does not support a conclusion the trial court made such a finding.

Respondent’s motion to amend the judgment relied upon the court’s inherent authority to correct its own errors in the interest of justice under section 128, made no mention of section 473, and raised no contention that any excusable neglect arose because of the court’s failure to accept respondent’s prior proposed filings. Similarly, the court’s written order granting the amendment said nothing about accepting respondent’s prior attempted filings, about any alleged excuse for the failure to file, or about any need to correct the judgment to permit a future filing. Rather, it merely corrected an alleged clerical error by conforming the judgment to the court’s written statement of decision. At the later oral argument on the motion to strike, which respondent did not attend, the court was reminded respondent had made no motion to excuse any neglect in filing under section 473, made no statements it was invoking such authority without a motion, and determined instead that due process and fairness concerns required it to allow the filing despite respondent’s many delays in seeking correction. Finally, we note that respondent’s filed memorandum of costs was for an amount greater than that requested in the rejected attachment and did not indicate it was an amended filing. For all of these reasons, we conclude the court’s order cannot be understood as exercising its authority to excuse an untimely filing. Rather, the order is what it appears to be, a nunc pro tunc correction of a clerical error in the judgment.

Upon review, then, the record shows respondent did not file a timely memorandum of costs and the court did not excuse this failure on any identifiable ground presented to it. Consequently, the court was not presented with proper legal grounds to accept respondent’s memorandum of costs and, therefore, abused its discretion when it denied the motion to strike.

DISPOSITION

The April 7, 2017 order of the court denying appellants’ motion to strike the memorandum of costs is reversed and the matter remanded for further proceedings consistent with this opinion. Appellants are entitled to their costs on appeal.