17-CIV-02699 ANDRE FAHRI, ET AL. VS. IRAJ ADINEH, ET AL.

ANDRE FAHRI IRAJ ADINEH
ELAINE R. LEE JASON M. MURPHY

DEFENDANTS’ MOTION FOR ENTRY OF JUDGMENT TENTATIVE RULING:

The Motion of Defendants Iraj Adineh and Reza Adineh (“Defendants”) for Entry of Judgment on Memorandum of Costs is GRANTED. Defendant Reza Adineh filed and served a Memorandum of Costs on March 20, 2019, and Defendant Iraj Adineh filed and served a Memorandum of Costs on May 3, 2019. Plaintiffs Andre Fahri and Jolanta Fahri (“Plaintiffs”) admit that they did not file and serve a Motion to Strike or Tax Costs. (See Plaintiffs’ Opposition, p.2:2; see also Cal. Rules of Court Rule 3.1700(b).)

Instead, Plaintiffs claim that the court should not award Defendants such costs because the time to appeal had not expired, and therefore these cost bills were premature. Plaintiffs offer no authority to support of this argument though. Rule 3.1700(a) requires that a party seeking costs must file and serve a Memorandum of Costs within 15 days after service of notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. Therefore, Plaintiffs’ contention that Defendants had to wait to file their Memorandum of Costs until after the time to file an appeal had expired, is unpersuasive as it conflicts with the time frame set forth in Rule 3.1700. Even when a notice of appeal is filed, the trial court still has jurisdiction over ancillary matters, which will not affect the issues on appeal, such as costs. Hoover Community Hotel Development Corp. v Thomson (1985) 168 Cal.App.3d 485, 487 (holding the trial court was not divested of its authority to determine a motion to tax costs despite the filing of a notice of appeal; Code of Civ. Proc. § 9:16(a).).

Lastly, Plaintiffs’ Notice of Appeal was filed in June 2019, after the time for Plaintiffs to file and serve a Motion to Strike or Tax Costs had passed. The appeal was dismissed in October 2019, and a remittitur issued in December 2019. Accordingly, even if the appeal stayed any trial court proceedings, Plaintiffs fail to establish why Defendants are not entitled to their costs at this time.

The Clerk is, therefore, ordered to enter the costs in the judgment.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.