Problem With Lower Court Ruling Was Relying On Time Deadlines And Analysis For Pre-judgment Costs.
In Zakarian v. Salumbides, Case No. B255237 (2d Dist., Div. 5 Oct. 2, 2015) (unpublished), the trial court was unhappy with post-judgment costs memoranda presented by the prevailing party, granting defense motions to tax costs (based primarily on timeliness of filing costs memoranda) and assessing $7,500 in CCP § 128.7 sanctions against plaintiff.
All of that went away on appeal, in a 3-0 decision (but with a concurring decision by Presiding Justice Turner) after plaintiff appealed both the tax costs order and the sanctions order.
The first challenge was that plaintiff did not properly appeal from the tax costs order. The appellate court did not disagree that another box could have been checked on the Judicial Council Form, but notices of appeal are liberally construed and the subject of appeal was clear based on the dated order being appealed from. (In Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC, 230 Cal.App.4th 244, 251 (2014).) However, the lower court erred on the merits, applying a deadline to tax costs applicable to pre-judgment costs rather than post-judgment costs, with the latter having a deadline of up to two years after costs have been incurred. (Code Civ. Proc., § 685.070.) The lower court also was wrong in determining that plaintiff was seeking interest (true, but in a different part of the Judicial Council forms) and was seeking attorney’s fees (no fee claims were being made, just “hard” post-judgment costs).
Although reversal of the tax costs order was enough, the defense further failed to follow the strict § 128.7 sanctions dictates of filing a separate motion for sanctions. Concurring Justice Turner agreed completely, but separately wrote to express that there might be a different ground upon which to award sanctions, but the defense did not ask for this disposition and no help was going to come from the appellate court.
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