Nevis Homes LLC v. CW Roofing, Inc.
156 Cal. Rptr. 3d 883
Cal. Ct. App.
2013
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NEVIS HOMES LLC et al., Cross-complainants and Appellants, v. CW ROOFING, INC., Cross-defendant and Appellant.

No. B237907

Second Dist., Div. One.

May 15, 2013.

353

[CERTIFIED FOR PARTIAL PUBLICATION*]

* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts II., III. and IV. of the Discussion.

Counsel

Tom S. Chun for Cross-defendant and Appellant.

Selman Breitman, Elaine K. Fresch, Rachel E. Hobbs and Sheila A. Baker for Cross-complainants and Appellants.

Opinion

ROTHSCHILD, Acting P. J.—In the published portion of this opinion we hold that, if a written notice of judgment or dismissal is served by mail within the State of California, the time for filing a memorandum of costs is extended by five days. In the unpublished portion of this opinion we consider who is a “prevailing party” for purposes of entitlement to costs under Code of Civil Procedure section 1032.1 Finally we affirm the trial court‘s denial of the parties’ motions for sanctions. We modify the order taxing costs and affirm the order as modified.

FACTS AND PROCEEDINGS BELOW

A homeowners association brought a construction defect action against Nevis Homes LLC and other defendants (collectively Nevis). Nevis cross-complained against CW Roofing, Inc. (CWRI), and Daniel Suh, doing business as the CW Roofing Co. (Suh), among others. In due course, the homeowners association settled with Nevis and Nevis settled with Suh and other cross-defendants. The settlement agreement stated: “Each of the SETTLING PARTIES acknowledge and agree that each of them is to bear his, her, or its own costs.” The settlement agreement did not name CWRI as one of the “settling parties” nor did anyone sign the agreement on CWRI‘s behalf. The agreement did provide, however, that “the release of [CWRI] by Defendants is a condition and material term of this settlement.”

After the “settling parties” signed the settlement agreement, Nevis dismissed its cross-complaint with prejudice as to all the cross-defendants including CWRI. Nevis mailed a written notice of entry of dismissal to CWRI on July 14, 2011. CWRI did not file its cost bill until August 2, 2011, 19 days after Nevis mailed the notice of entry of dismissal. Nevis moved to strike CWRI‘s cost bill on the ground that it was untimely under California Rules of Court, rule 3.1700(a),2 which, as applicable here, requires the cost bill to be filed within 15 days after the date of service of a written notice of entry of dismissal. Nevis also moved for sanctions against CWRI for filing a frivolous request for costs on the ground that CWRI had already been paid most of its costs by its insurance carrier. CWRI in turn sought sanctions against Nevis for seeking sanctions against it.

The trial court granted the motion to tax costs in its entirety. The court denied the parties’ motion for sanctions.

CWRI appeals from the orders denying it costs and sanctions against Nevis. Nevis cross-appeals from the order denying it sanctions against CWRI.

DISCUSSION

I. CWRI‘s Memorandum of Costs Was Timely Because the Notice of Dismissal Was Served by Mail.

Nevis contends that the cost bill was untimely because it was not filed within the 15-day time period specified by rule 3.1700(a)(1). CWRI maintains, however, that its cost bill was timely under section 1013, subdivision (a), which extended the time to file by five days because Nevis served the notice of dismissal by mail. We agree. The time to file a motion to tax costs was extended by five days because service was by mail.

Rule 3.1700(a)(1) provides in relevant part: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after ... the date of service of written notice of entry of judgment or dismissal . . . .”

Section 1013, subdivision (a), states in pertinent part: “In the case of service by mail, . . . [s]ervice is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California .... This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court.”

Two reported opinions have assumed without analysis that the five-day extension of time under section 1013, subdivision (a), applies to the time for filing a memorandum of costs. (; .)3 Nevis challenges that assumption.

Nevis contends that rule 3.1700 provides an exception to the five-day extension and points out that rule 3.1700(b), pertaining to the time for opposing a cost memorandum, states that, “[i]f the cost memorandum was served by mail, the period is extended as provided in . . . section 1013.” This reference to section 1013, Nevis observes, is conspicuously absent from rule 3.1700(a), pertaining to the time for filing a cost bill. Nevis thus reasons that, by including a reference to section 1013 in rule 3.1700(b), but not in rule 3.1700(a), the Judicial Council must have intended that section 1013 not apply to rule 3.1700(a), which therefore is an exception to that statute.

Furthermore, Nevis argues, the Judicial Council had a reason for excluding the five-day extension for filing cost bills. The notes accompanying former rule 870, the predecessor to rule 3.1700, show that the Judicial Council increased the time for “filing and serving a memorandum of costs and a notice of motion to tax costs from 10 to 15 days so that the motions relating to costs, attorney fees and new trials may be heard simultaneously.” (1987 Drafter‘s Note, Deering‘s Ann. Codes, Rules (2004 ed.) foll. former rule 870 [new trial motions must be filed within 15 days of the date of mailing notice of entry of judgment (§ 659, subd. (a)(2)) and the five-day extension is expressly excluded by § 1013, subd. (a)].)

We disagree with these arguments. No statute or rule of court “specifically” exempts cost memoranda from the five-day mailing extension in section 1013, subdivision (a). Moreover, section 1013, subdivision (a), specifies the items to which the extension does not apply. A memorandum of costs is not among those exceptions. Nor does rule 3.1700 specifically exempt a cost memorandum from the time extension provided by section 1013, subdivision (a). Regardless of what the Judicial Council may have had in mind when it adopted former rule 870, its intent cannot trump the plain meaning of the statute. We are not authorized to rewrite the plain language of a statute to conform to an assumed intent that does not appear from the language. (.)

Finally, Nevis contends that applying section 1013, subdivision (a)‘s five-day extension to the time for filing memoranda of costs under rule 3.1700(a) would have an unfair and unintended result because a five-day extension does not apply if the notice is mailed by the clerk of the court4 but, accepting the interpretation proposed by CWRI, the extension would apply if the notice was mailed by a party. Nevis argues that the five-day extension under section 1013, subdivision (a), applies only “[i]n case of service by mail.” Thus, it applies to the “service of written notice of entry of judgment or dismissal” by a party if the service is by mail. (Rule 3.1700(a)(1), italics added.) But, under the terms of rule 3.1700(a), the five-day extension does not apply when the notice is sent by the clerk pursuant to section 664.5 because based on the wording of that section, the clerk does not “serve” the notice but only “mails” it. Because the case before us falls into the category

of cases in which the notice was undisputedly “served,” we need not address the theoretical problem raised by Nevis as to what would be the result if the notice were mailed by the clerk.

II.-IV.*

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DISPOSITION

The order taxing costs is modified to tax CWRI‘s allowable costs only to the extent that they duplicate costs previously paid to or on behalf of CWRI by its insurer, Gemini. The order is affirmed as modified. The order denying the motions for sanctions is affirmed. Each party is to bear its own costs on appeal.

Chaney, J., and Johnson, J., concurred.

* See footnote, ante, page 353.

Notes

1
All statutory references are to the Code of Civil Procedure.
2
All rule references are to the California Rules of Court.
3
Nevis erroneously claims that three cases hold section 1013, subdivision (a), does not apply to the filing of a cost memorandum. In fact, none of the cases Nevis cites even mentions section 1013. (; ; .)
4
Section 664.5, subdivision (b), provides that, in a contested or special proceeding in which a prevailing party is not represented by counsel, “the clerk of the court shall mail notice of entry of judgment to all parties who have appeared in the action or special proceeding . . . .”
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