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In a brief but useful
decision, Fries v. Rite Aid Corporation (April 23, 2009) 09 C.D.O.S.
A120488, Division Three of the First Appellate District held “there
is no legal requirement that a defendant file a proposed judgment”
in addition to its memorandum of costs following plaintiff’s
voluntary dismissal of the action.
Plaintiff Fries was a minor who sued Rite Aid and an employee on the
grounds that the employee allegedly detained and sexually molested
her “under the pretext” of investigating suspected shoplifting.
Fries later filed a request for dismissal of the entire action. Both
Rite Aid and its employee filed costs memoranda. Plaintiff made a
motion to tax costs on the grounds that the memoranda were
procedurally defective since defendants failed to also file proposed
orders of judgment or dismissal with their costs bills; she also
contended some of the items in the memoranda were not allowable
costs.
The trial court rejected Fries’ claim that defendants’ failure to
submit a proposed judgment order with their costs bills should bar
recovery of the costs of litigation. The court noted that defendants
had complied with the requirements of California Rule of Court
3.1700. While it did tax some of Rite Aid’s costs, it approved the
rest of the claimed costs by both defendants. Thereafter, both
defendants submitted a proposed judgment that reflected the action
was voluntarily dismissed without prejudice, and that costs in the
amounts of $11,741.87 and $4,372.55 had been awarded to Rite Aid and
its employee, respectively. Plaintiff appealed.
In support of her appeal, plaintiff relied in part on the Rutter
Group Treatise by Brown and Weil. She claimed that the trial court
should have denied defendants claimed costs because they did not
file a proposed judgment along with their costs memos. The appellate
court disagreed, and is so doing, took exception with the commentary
of Weil and Brown.
The court stated that Rule 3.1700 “governs the procedure for
claiming costs….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 they must do so. Neither the cases nor the practice
guide Fries cites to support her position are persuasive.”
According to the court, there is nothing ambiguous about rule 3.1700
and how it should apply to the situation faced by defendants—seeking
reimbursement of allowable costs after a plaintiff voluntarily
dismisses her case without the consent of defendants or an agreement
with them to waive costs in exchange for a dismissal. Plaintiff
quoted the treatise in question which stated “apparently,
defendant’s memorandum of costs must be filed together with a
proposed judgment of dismissal [Cite]. (Weil & Brown, Cal. Practice
Guide: Civil Procedure Before Trial (The Rutter Group 2008) §§11:38
TO 11:38.1, pp. 11-22 to 11-23.)” However, the court stated:
“Nothing in rule 3.1700 or its predecessor suggests a defendant must
file a proposed judgment along with a memorandum of costs in order
to recover its costs after a voluntary dismissal” and affirmed.
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