Baldwin v. Ortiz
Filed 3/5/12 Baldwin v. Ortiz
CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
KRISTEN BALDWIN,
Plaintiff and
Respondent,
v.
MIRIAM
ORTIZ et al.,
Defendants and Appellants.
G045347
(Super. Ct.
No. 30-2009-00120781)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Steven L. Perk, Judge.
Reversed and remanded.
Law Office of Tioni A.
Phan, Tioni A. Phan and Grace Ogburn for Defendants and Appellants.
Law Offices of Kyle
Scott and Kyle J. Scott for Plaintiff and Respondent.
* * *
We
conclude for the reasons discussed in our opinion that the trial court erred in
declaring the amended judgment void. We
therefore reverse the trial court’s postjudgment order vacating the amended
judgment, and remand for the court to reinstate that amended judgment.
I
FACTS
This action arose from a
2006 automobile accident. Plaintiff and
respondent Kristen Baldwin filed suit against defendants and appellants Miriam
Ortiz and Alex Ortiz. In July 2009,
defendants made an offer to compromise the dispute for $5,500 in exchange for a
dismissal and general release under Code of Civil Procedure, section 998. (All
statutory references are to the Code of Civil Procedure.) Trial commenced in October 2010 and the jury
returned a verdict for $3,046.40 in favor of plaintiff.
November 1, 2010 Plaintiff filed a memorandum of
costs totaling $3,011.38.
November 12, 2010 Defendants filed a notice to tax
costs, arguing $2,606.38 be taxed,
because they were incurred after defendants
served the offer to compromise.
December 7, 2010 Judgment was entered.
December 20, 2010 Defendants filed a memorandum of
costs in the amount of $8,878.40 for postoffer
costs and expert witness fees with the doctors’
bills attached.
January 14, 2011 The court heard the motion to tax costs, and made a finding
the $5,500 offer to compromise was not a token offer. The court granted the motion to tax plaintiff’s
costs in the amount of $1,369.04. In its
ruling, the court specifically stated: “Because defendants have not
submitted any cost memorandum at this time, there is no basis for an
off-set.” During argument, the court asked defendants counsel whether or
not an “opposing memorandum of costs” would be submitted. Defendants’ lawyer stated to the court: “I believe one was filed, your Honor. What we’ll do is we’ll go ahead and submit a
proposed amendment to the judgment with our motion because I expected the
pending motion to tax and/or strike but none was forthcoming, so we’ll prepare
that.”
January 19, 2011 Notice of entry of judgment
served.
January 26, 2011 Defendants
filed another memorandum of costs, identical
to their December 20 memorandum but without the attachments.
March 11, 2011 Amended judgment prepared by defendants was signed by the
court and filed. Unlike the judgment entered the previous December 7, the
amended judgment stated: “On December 20,
2010,
this Defendant filed her Memorandum of Costs in the amount of $8,878.40,
pursuant to CCP §998. Plaintiff never filed her motion to strike and/or
tax Defendant’s Memorandum of Costs. [¶] WHEREFORE . . . IT IS ORDERED,
ADJUDGED AND DECREED: [¶] 1. The prior judgment is amended as follows:
The Defendant, Miriam Ortiz is awarded costs in the amount of $8,878.40.
[¶] 2. The plaintiff is awarded her costs in the amount of $1,642.34, including
her judgment of $3,046.40, for a total of $4,688.74. [¶] 3. Defendants,
Miriam Ortiz have recovered from plaintiff, Kristin Baldwin, the sum of
$4,189.66, with interest thereon at a legal rate of 10% per annum from the date
of the judgment until paid, together with costs and disbursements.”
April 19, 2011 Plaintiff
filed a motion to set aside a void judgment.
May 20, 2011 The
court ruled as follows: “Plaintiff Baldwin’s Motion to Set aside Void
Judgment is Granted; The defendants failed to file an appropriate
motion with the court to determine its costs per CCP 998. The amended judgment
of March 11, 2011, does modify the rights of the plaintiff and did not
correct a clerical error. Rochin is the controlling authority. The court
lost jurisdiction to award the defendant[s’] costs 15 days after Entry of
judgment on January 21, 2011. . . . However, this defendants’ Memo of Costs had
not been considered by the court at the hearing on the Motion to Tax
Plaintiff’s Costs on January 11, 2011, and was not placed before the
court by motion for a determination of the appropriate costs to be awarded
under CCP 998. The court did not have jurisdiction to sign the amended
judgment on March 11, 2011, and it is void.”
June 7, 2011 Defendants
filed a notice of appeal. In the notice, the box “Judgment after jury
trial” is checked regarding from what defendants appeal. The following additional language is
added: “Partial Appeal from Original
Judgment-Page 3: Defendant[s’] Costs
left blank-Reinstated 5/20/11.” Defendants also appealed from the order
vacating the amended judgment.
June 20, 2011 Defendants
filed in the trial court a motion for an offset/augment of the damages awarded
to plaintiff. Plaintiff’s opposition to
the motion argues the trial court lost jurisdiction to award defendants costs
15 days after the January 21, 2011 notice of entry of
judgment. The court’s ruling states: “The issue regarding whether
Defendants are entitled to costs under C.C.P. § 998 is the heart of the issue
on appeal and is not merely collateral. Judge Perk’s 5/20/11 minute order
(the subject of the appeal) states that the ‘defendants failed to file an
appropriate motion with the court to determine its costs per C.C.P. § 998,’ and
that the ‘court lost jurisdiction to award the defendants’ costs 15 days after
entry of judgment on January 21, 2011.’ [¶] This order voided the amended
judgment. [¶] The civil action is stayed pending the resolution of the
appeal pursuant to C.C.P. § 916.”
II
DISCUSSION
Timeliness of Appeal
In her
defendants’ appeal is untimely. She
states the notice of entry of judgment was served by her on January
19, 2011 and the
notice of appeal was not filed until June 7, 2011. But
the defendants also appealed from the trial court’s order vacating the amended
judgment, and it is that order that is the subject of this appeal.
Cal.App.3d 662, is useful here. In
29, 1986 and an
amended judgment was entered on July 1, 1986. The
July 1 judgment was declared void on November 21, 1986, and Robert Micalizio appealed from the
April 29 judgment on January 5, 1987. The
July 1, 1986, even though void, superseded the first judgment and remained in effect
as the operative judgment, suspending the time to appeal from the first
judgment, until the amended judgment was declared void in the trial court’s
minute order of November 21, 1986. When
the right of appeal is suspended, an appeal may be taken within the time
provided by law after the right is restored.
[Citations.] Robert had no right
to appeal from the April 29, 1986 judgment while the amended judgment was in
place. The reinstated judgment was a new
judgment for purposes of appeal, and the time for filing a notice of appeal
from that judgment began to run from the date the second judgment was declared
void in the trial court.” (
A notice
of appeal must be filed 60 days after the party filing the notice of appeal is
served with a document entitled “Notice of Entry” of judgment. (Cal. Rules of Court, rule 8.104(a)(2).) A direct appeal may be taken from an
order vacating a final judgment.
(§ 904.1, subd. (a)(2); Concerned
Citizens Coalition of Stockton v. City of Stockton (2005) 128 Cal.App.4th
70, 80.) Here, the Ortizes’ notice of
appeal identified the order vacating the judgment as the basis for their
appeal.
Because the Ortizes filed their notice of appeal 18 days after the
trial court vacated the amended judgment, the appeal from that order is timely.
Placing Issue of Expert Costs
Before the Court
There does
not appear to be any hard and fast rule regarding how a defendant gets the
issue of recovering expert witness costs under section 998 before the
court. In Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, the
defendant made a motion. In
139 Cal.App.4th 20, the court stated:
“Nor did the trial court err in awarding expert witness costs claimed in
a cost bill rather than a noticed motion.
Code of Civil Procedure section 998 grants the trial court discretion to
award expert witness fees to a qualifying prevailing party. The fees may be claimed in a cost bill; there
is no rule requiring a noticed motion.
[Citations.]” (
Here the
record demonstrates defendants filed their cost bill on December 20, 2010, and
that the court appeared ready and willing to take up the issue on January 14,
2011, during the hearing on the motion to tax plaintiff’s cost bill. While court rules require a memorandum of
costs to be filed within 15 days after the mailing of the notice of entry of
judgment, absent prejudice, courts routinely treat prematurely filed cost bills
as being timely filed. (
153 Cal.App.4th 863, 880; Cal. Rules of Court, rule 3.1700(a)(1).)
At that
January 14 hearing, the court began making the discretionary section 998
decisions by finding defendants’ offer was not a token offer. But when the court asked the defense lawyer
whether or not a memorandum of costs would be submitted, instead of clearly
informing the court that it had been, the lawyer dissuaded the court from
proceeding further on the expert fee issue by stating, in a rather confused
fashion, that both a motion and an amended judgment would be filed: “I believe one was
filed, your Honor. What we’ll do is
we’ll go ahead and submit a proposed amendment to the judgment with our motion
because I expected the pending motion to tax and/or strike but none was
forthcoming, so we’ll prepare that.”
Defendants
did not file a motion to tax costs as their next step, however. Instead, they filed another cost bill and
then an amended judgment. That amended
judgment gave them all they wanted by including an award of $8,878.40 to
defendants.
Plaintiff had
several opportunities to file a motion to tax those costs, but did not. True, the Ortizes’ lawyer could have
been more articulate in explaining that Baldwin failed to contest the submitted
cost bill, but the fact remains Baldwin never challenged the Ortizes’ cost
bill. Nor did Baldwin raise a challenge
when the Ortizes’ lawyer on January 26 filed a cost bill identical to the one
they initially filed in December 2010.
Baldwin therefore waived her right to challenge the Ortizes’ recovery of
their expert witness fees and postoffer costs. “The ‘failure to file a motion to tax costs constitutes a
waiver of the right to object.
[Citation.]’ [Citation.]” (Douglas
v. Willis (1994) 27 Cal.App.4th 287, 289; see also
Cal.App.3d 1442, 1447.) “After the time has passed for a motion to
strike or tax costs or for determination of that motion, the clerk must
immediately enter the costs on the judgment.”
(Cal. Rules of Court, rule 3.1700(b)(4).)
Ministerial/Discretionary Act
Defendants
contend they timely requested their section 998 expert witness costs, an offset
pursuant to section 998 is mandatory and, since their claim for expert witness
costs was uncontested, it was a ministerial act for the clerk to enter the
expert witness costs claimed in their memorandum of costs. Plaintiff, on the other hand, argues the
court must make a discretionary order regarding the award of attorney fees
under section 998.
Normally the trial court
must exercise its discretion to determine whether to award expert witness fees
under section 998. (§ 998, subd.
(c)(1) [“the court or arbitrator, in its discretion, may require the plaintiff
to pay a reasonable sum to cover costs of the services of expert witnesses . .
. by the defendant”].) The trial court,
however, is not called on to exercise its discretion when a party waives its
objections to a cost bill by failing to file a timely motion to tax. When this occurs, the court clerk has a ministerial
duty to “immediately” enter the claimed costs on the judgment, including
section 998 expert witness fees. (Cal.
Rules of Court, rule 3.1700(b)(4); Williams
v. Santa Maria Joint Union High Sch. Dist. (1967) 252 Cal.App.2d 1010,
1014.) Here, the trial court amended the
judgment to award Miriam Ortiz her expert witness fees and postoffer costs,
which exceeded Baldwin’s recovery. (See
§ 998, subd. (e) [“If the costs awarded under this section exceed the amount
of the damages awarded to the plaintiff the net amount shall be awarded to the
defendant and the judgment or award shall be entered accordingly”].) This is also a ministerial act, involving
nothing more than a simple mathematical calculation. No exercise of judicial judgment is involved
because Baldwin waived any objection to the Ortizes’ cost bill. (See Rochin
v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1237
[court retains power to correct clerical errors in a judgment that has been
entered].) Thus, the Ortizes were entitled
to an amended judgment under section 998, subdivision (e), which reflected the
recovery of their expert witness fees and postoffer costs. The trial court did not exceed its
jurisdiction by entering the amended judgment, and therefore erred in declaring the amended judgment void.
III
DISPOSITION
The
order vacating the amended judgment is reversed. The matter is remanded for the trial court to
reinstate the amended judgment.
Regarding costs on appeal, we do not award defendants their costs
because the confusion in the trial court resulted from their not clearly
informing the court a cost bill had been filed when the court inquired. Each party to bear its own costs on appeal.
MOORE,
J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
