Lower Court Also Granted Plaintiff CCP § 473 Relief From A Late-Filed Motion To Tax Costs, But No Costs Could Be Recovered Given Plaintiff’s Waiver By Failing To File A Costs Memo.
The procedural events in Cielo Homeowners Assn. v. Bennett, Case No. D079743 (4th Dist., Div. 1 Mar. 10, 2023) (unpublished) were, to say the least, bizarre. In the end, a plaintiff’s failure to file a verified memorandum of costs on appeal was dispositive.
Plaintiff won a reversal of a judgment earlier, with the appellate court awarding her costs on appeal. Plaintiff’s husband, a non-party, served a memorandum of costs on appeal never signed by plaintiff, and he apparently never filed the costs memo. Defendant filed a motion to tax costs, but admittedly filed it three days late, asking for CCP § 473 relief from the lower court. A lower court order directed plaintiff to file a verified memorandum of costs on appeal to a date certain, which she did not do. She did not appear at the hearing on the motion to tax costs, which was granted after the lower court granted the § 473 relief sought by defendant.
The appellate court sustained the denial of the motion to tax costs. Granting the 473 relief was warranted; but, in any event, plaintiff’s failure to file a costs memorandum meant there were no costs to strike or tax anyway. The ultimate result was affirmed on appeal.
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