Premature Filing of Costs Memorandum Was Not Fatal.
In Tate v. Prendergast, Case No. G044621 (4th Dist., Div. 3 Nov. 7, 2011) (unpublished), personal injury plaintiff seeking $750,000 in damages rejected a CCP § 998 offer of $20,001 but only was awarded $300 for past medical expenses by a jury. This kicked in the costs-shifting feature of section 998, with defendant seeking $12,703 in costs. The only problem is that defendant prematurely filed the costs memo right after the jury verdict rather than waiting for entry of judgment and then following the time schedule. The trial court nevertheless awarded $12,403 in costs to defendant.
Plaintiff appealed, but to no avail. Acting Presiding Justice Bedsworth, writing for a 3-0 panel, adhered to the the law indicating that costs memo time limitations are not jurisdictional and to case law where courts indeed had treated prematurely filed cost bills as timely. (See, e.g., Haley v. Casa Del Rey Homeowners Assn., 153 Cal.App.4th 863, 880 (2007).) Also, a premature filing does not constitute reversible error unless it prejudices the other party. (Pamela W. v. Millsom, 25 Cal.App.4th 950, 961 (1994).) Here, the lack of prejudice and failure to move to strike below were dispositive, resulting in an affirmance of the costs award to the defense.