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Robert M. Rawlings v. Cliff's River Marina et al

March 1, 2011

ROBERT M. RAWLINGS, PLAINTIFF,
CROSS-DEFENDANT AND APPELLANT,
v.
CLIFF'S RIVER MARINA ET AL., DEFENDANTS,
CROSS- COMPLAINANTS AND RESPONDENTS.



(Super. Ct. No. 05AS05387)

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

Rawlings v. Cliff's River Marina

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Robert Rawlings brings this pro se appeal from the trial court's order declining to set aside the judgment entered in favor of defendant and cross-complainant Cliff's River Marina after a court trial. (Code Civ. Proc., §§ 473, 663.) Rawlings moved to vacate the judgment on the ground he was never served with the cost memorandum or the proposed judgment, and therefore had no opportunity to contest the $4,359.69 in costs awarded to Cliff's River Marina, or to challenge the court's award of prejudgment interest on the damages awarded on the cross-complaint.

On appeal, Rawlings claims Cliff's River Marina failed to give him proper notice of the cost memorandum or the proposed judgment. His argument has merit; we shall reverse that portion of the judgment that awards costs and prejudgment interest and remand the case for the court to consider anew any challenge Rawlings may bring to the memorandum of costs filed by Cliff's River Marina and/or to the award of prejudgment interest on damages awarded on the cross-complaint.

BACKGROUND

The appellate record in this case is very sparse. From the documents filed in support of Rawlings' motion to vacate the judgment, we glean the following.

Plaintiffs are Rawlings and Eugene Isaacson; defendants are Cliff's River Marina, Robert McDaris, Shawn Berrigan, Diane House and Thomas Decker. Cliff's River Marina cross-complained against Rawlings and Isaacson. The underlying lawsuit and cross-complaint were tried to the court (by Judge Rodda) over four days in 2007.

Following the trial, the court issued a tentative decision, which provided in relevant part: "As to the cross-complaint of Cliff's Marina, the court finds for Cliff's Marina and against cross-defendants Rawlings and Isaacson. These boats have been moored at the Marina since December 14, 2004. The monthly storage rate for the Rawlings boat is $273.00 and for the Isaacson boat is $234.00 There is no basis for the recovery of impound fees or late payment penalties. Judgment will be entered on the basis of the monthly rates prorated for the first month in December 2004 and prorated through the last day of trial.

"If a statement of decision is requested, counsel for the defendants and cross-complainant is to prepare and serve a proposed statement of decision consistent with this tentative decision. Counsel is also to prepare and serve a proposed judgment."*fn1

Cliff's River Marina filed its memorandum of costs on June 12, 2008, in which it claimed costs of $4,359.69 on its cross-complaint against Rawlings and Isaacson. A proof of service dated the preceding May 1 shows service of the cost memo on Rawlings' then-attorney, Susan Wilkinson, at P.O. Box 263, Roseville, CA 95667. A second proof of service, bearing the same date and address, shows service on Wilkinson of a "Proposed Judgment." The proposed judgment is not attached to the proof of service, and does not otherwise appear in the appellate record.

The court entered judgment on June 12, 2008, in favor of defendants in the main action; on the cross-complaint, it entered judgment in favor of Cliff's River Marina and against Rawlings and Isaacson in the amount of $23,889.33. The components of that judgment are: $18,252 ...


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