First District, Division 3 Disagrees With Weil & Brown Treatise Commentary.
After plaintiff voluntarily dismissed her action, two defendants timely filed cost memoranda, but did not submit proposed judgments in addition to the memoranda. Plaintiff argued that the failure to submit these extra proposed judgments barred recovery of costs based primarily on a commentary found in Weil & Brown’s venerable “Civil Procedure Before Trial” practice treatise published by The Rutter Group. The trial court rejected the notion that the failure to file the proposed judgment document rendered meaningless the costs memorandum, approving the two cost bills after taxing a few items. Plaintiff, still disgruntled, appealed.
The First District, Division 3, in Fries v. Rite Aid Corporation, Case No. A120488 (Apr. 22, 2009) (certified for partial publication), affirmed the costs judgment. California Rules of Court, rule 3.1700 plainly states that a costs memorandum must be served and filed within 15 days after, among other things, service of written notice of entry of judgment or dismissal. That was plain enough to show that the entry of the dismissal triggered the time to file a cost memorandum, with no authority supporting the view “that a voluntarily dismissed defendant must file a proposed judgment of dismissal together with the memorandum of costs.” (Slip Opn., at p. 5.)
Plaintiff primarily argued that a contrary commentary from Weil & Brown’s civil practice treatise dictated otherwise, but the appellate panel showed why the commentary was unpersuasive. (BLOG OBSERVATION—This treatise is a tremendous resource, but demonstrates that courts will not follow it if convinced that it happens to be in error. However, co-contributors Marc and Mike do reiterate it is a great resource for use by California litigators.)
In an unpublished portion of the opinion, the Court of Appeal did reverse two discovery orders entered after voluntary dismissal of the action by plaintiff. Even though a discovery law-and-motion tentative was against plaintiff, she did dismiss before the gavel came down and the orders were signed. The dismissal divested the trial court of jurisdiction to act, except to adjudicate costs/fees issues. Fries distinguished exceptions to this general rule as involving “determinative adjudications,” such adverse summary judgment rulings or terminating sanctions adjudications (merit-based determinations versus the interim discovery orders involved in the case before it).