The Clerk’s Mailing Did Not Trigger Deadlines For The Costs Memorandum Or Fees Motion Because The Judgment Was Not Accompanied By A Proof Of Service And Failed To Satisfy Requirements For Service Of Notice Of Entry Of Judgment.
In MES Investments, LLC v. Dadson Washer Service, Inc., Case No. B297634 (2d Dist., Div. 3 September 25, 2020) (unpublished), defendant was awarded prevailing party costs and contractual attorney fees following a bench trial. On appeal, plaintiff argued that defendant’s motions for fees and memorandum of costs were not timely filed.
When the trial court entered judgment, the superior court clerk mailed a conformed copy of the judgment to the parties. Plaintiff claimed the clerk’s mailing triggered a 15-day deadline for defendant to file and serve its memorandum of costs pursuant to California Rules of Court, rule 3.1700(a)(1), and a 60-day deadline for defendant’s fees motion pursuant to rule 3.1702(b). Because defendant filed and served its costs memorandum more than 60 days after the clerk’s mailing, and its fees motion 60 additional days beyond that, plaintiff argued the fees/costs awards should be reversed.
However, the 2/3 DCA affirmed – explaining service of notice of entry of judgment did not occur until defendant filed and served it on the same date it filed its memorandum of costs. The clerk’s mailing of the judgment did not include a proof of service – meaning there was nothing in the record establishing the deadlines for defendant to file its costs memorandum and fees motion as the simple act of mailing a conformed copy of the judgment does not constitute service of notice of entry of judgment. To constitute service and establish posttrial motion deadlines, “the clerk’s mailed notice must affirmatively state that it was given ‘upon order by the court’ or ‘under section 664.5’ and a certificate of mailing the notice must be executed and placed in the file.” (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc., 15 Cal.4th 51, 64 (1997).)
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