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Fries v. Rite Aid Corp.

April 22, 2009


(City & County of San Francisco Super. Ct. No. CGC06448833), Trial Judge: Patrick Mahoney.

The opinion of the court was delivered by: Siggins, J.


Must a defendant who seeks costs after a plaintiff‟s voluntary dismissal file a proposed judgment in addition to its memorandum of costs? We conclude that there is no legal requirement that a defendant file a proposed judgment. The trial court correctly denied plaintiff Jacquelyn Fries‟s motion to tax or strike costs, and we affirm the order and judgment awarding costs. However, we reverse two discovery orders issued after the case was dismissed because they were void due to the trial court‟s lack of jurisdiction.


Fries, a minor, filed this action against Rite Aid Corporation and Richard Green through her guardian ad litem. The complaint alleged that Green, a Rite Aid security guard, detained and sexually molested Fries under the pretext that he was investigating a shoplifting incident.

On September 4, 2007, Fries filed a request for dismissal of the entire action without prejudice. She filed and served notice of entry of dismissal on September 10, 2007. On September 10 and September 12, 2007, Rite Aid and Green filed their respective memoranda of costs. Fries responded with a motion to strike or tax costs, in which she argued the memoranda of costs were procedurally defective because defendants failed to file proposed judgments or orders of dismissal when they filed the memoranda. Alternatively, she asserted that certain costs were not allowable, were unreasonable in amount, or were not reasonably necessary to the conduct of the litigation.

Several weeks before the hearing on the motion to strike or tax, Green sent the court a proposed judgment of dismissal. His cover letter explained: "As you know, the plaintiff has made much of some requirement that the defendants submit a proposed judgment with their cost bill. Although we do not concede this claim, out of an excess of caution, we did submit a proposed judgment. Thereafter, we received endorsed copies of all that we filed except the proposed judgment, which was returned with a note from the Clerk saying that the Clerk will not file this until after costs have been determined and that we need to insert the amount awarded by the Court before submitting the judgment."

The court rejected Fries‟s contention that defendants‟ failure to submit a proposed judgment with their costs memoranda barred recovery. The court noted that defendants complied with rule 3.1700 of the California Rules of Court*fn2 and observed that a practice guide Fries relied upon to argue the defendants were required to submit a proposed judgment "is interesting but... does not address the plain language of [rule] 3.1700...." The court taxed $2,638.96 of Rite Aid‟s claimed costs but otherwise approved both parties‟ costs bills.

Green and Rite Aid submitted a proposed judgment that declared the action was dismissed without prejudice and awarded costs of $11,741.87 and $4,372.55 to Rite Aid and Green, respectively. This appeal timely followed.


I. The Necessity for a Proposed Judgment Prior to an Award of Costs

Fries contends the trial court was required to deny all claimed costs because defendants did not file a proposed judgment together with their costs memoranda. We disagree.

Rule 3.1700 governs the procedure for claiming costs. In relevant part, it provides: "A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first." (Rule 3.1700(a)(1).)*fn3 Defendants complied with rule 3.1700 when they filed memoranda of costs within 15 days after the date the notice of entry of dismissal was served. The question is whether, as Fries maintains, defendants were also required to file a proposed judgment along with their memoranda of costs, even though rule 3.1700 does not provide that they must do so. Neither the cases nor the practice guide Fries cites to support her position are persuasive.

In Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188, the plaintiff filed an amended complaint that omitted six defendants named in a previous complaint, including Payless. She then attempted to voluntarily dismiss those six defendants without prejudice, but the court clerk rejected her request for dismissal because she had not correctly completed the form. The error was never corrected and no dismissal was entered. Payless nonetheless filed a costs memorandum and was awarded costs. On appeal, the ...

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