Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nevis Homes LLC et al v. Cw Roofing

May 15, 2013

NEVIS HOMES LLC ET AL., CROSS-COMPLAINANTS AND APPELLANTS,
v.
CW ROOFING, INC., CROSS-DEFENDANT AND APPELLANT.



APPEALS from orders of the Superior Court of Los Angeles County. Jan A. Pluim, Judge. (Los Angeles County Super. Ct. No. GC037387)

The opinion of the court was delivered by: Rothschild, Acting P. J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Affirmed as modified.

In the published portion of this opinion we hold that, if a written notice of judgment or dismissal is served by mail within the State of California, the time for filing a memorandum of costs is extended by five days. In the unpublished portion of this opinion we consider who is a "prevailing party" for purposes of entitlement to costs under Code of Civil Procedure section 1032.*fn2 Finally we affirm the trial court's denial of the parties' motions for sanctions. We modify the order taxing costs and affirm the order as modified.

FACTS AND PROCEEDINGS BELOW

A homeowners' association brought a construction defect action against Nevis Homes, LLC and other defendants (collectively Nevis). Nevis cross-complained against CW Roofing, Inc. (CWRI) and Daniel Suh, doing business as the CW Roofing Co., (Suh) among others. In due course, the homeowners' association settled with Nevis and Nevis settled with Suh and other cross-defendants. The settlement agreement stated: "Each of the SETTLING PARTIES acknowledge and agree that each of them is to bear his, her, or its own costs." The settlement agreement did not name CWRI as one of the "settling parties" nor did anyone sign the agreement on CWRI's behalf. The agreement did provide, however, that "the release of [CWRI] by Defendants is a condition and material term of this settlement."

After the "settling parties" signed the settlement agreement, Nevis dismissed its cross-complaint with prejudice as to all the cross-defendants including CWRI. Nevis mailed a written notice of entry of dismissal to CWRI on July 14, 2011. CWRI did not file its cost bill until August 2, 2011, 19 days after Nevis mailed the notice of entry of dismissal. Nevis moved to strike CWRI's cost bill on the ground that it was untimely under California Rules of Court, rule 3.1700(a),*fn3 which, as applicable here, requires the cost bill to be filed within 15 days after the date of service of a written notice of entry of dismissal. Nevis also moved for sanctions against CWRI for filing a frivolous request for costs on the ground that CWRI had already been paid most of its costs by its insurance carrier. CWRI in turn sought sanctions against Nevis for seeking sanctions against it.

The trial court granted the motion to tax costs in its entirety. The court denied the parties' motion for sanctions.

CWRI appeals from the orders denying it costs and sanctions against Nevis. Nevis cross-appeals from the order denying it sanctions against CWRI.

DISCUSSION

I. CWRI'S MEMORANDUM OF COSTS WAS TIMELY BECAUSE THE NOTICE OF DISMISSAL WAS SERVED BY MAIL.

Nevis contends that the cost bill was untimely because it was not filed within the 15-day time period specified by rule 3.1700(a)(1). CWRI maintains, however, that its cost bill was timely under section 1013, subdivision (a), which extended the time to file by five days because Nevis served the notice of dismissal by mail. We agree. The time to file a motion to tax costs was extended by five days because service was by mail.

Rule 3.1700(a)(1) provides in relevant part: "A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after . . . the date of service of written notice of entry of judgment or dismissal."

Section 1013, subdivision (a), states in pertinent part: "In the case of service by mail, . . . [s]ervice is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California[.] . ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.