PEÑA, J.
Plaintiffs Deborah D. and Vincent Z. Frascona (the Frasconas) filed suit against defendant Wal-Mart Stores, Inc. (Wal-Mart) after a Wal-Mart employee caused a shopping cart to bump into Deborah, resulting in injury. The jury returned a verdict in favor of Deborah for her personal injury claim and returned a verdict in favor of Wal-Mart against Vincent's claim for loss of consortium.
The trial court granted the Frasconas' motion to tax Wal-Mart's memorandum of costs in its entirety. Wal-Mart appealed the order but subsequently abandoned its appeal. The Frasconas filed a motion to interlineate the judgment to include a statement awarding costs against Wal-Mart and in favor of Deborah. Following two hearings on the motion, the court granted the Frasconas' motion. Wal-Mart appealed the order and, while the appeal was pending, filed a motion for relief from the order pursuant to Code of Civil Procedure
Wal-Mart then satisfied the judgment in full in favor of Deborah, dismissed its second appeal, and filed a second motion for relief under section 473. The trial court held Wal-Mart's motion was untimely and, in addition, denied the motion on its merits. Wal-Mart appeals from this motion.
On appeal, Wal-Mart contends (1) the trial court abused its discretion by finding Wal-Mart's request for relief under section 473, subdivision (b) was untimely, (2) the court abused its discretion in denying Wal-Mart's motion on the merits, and (3) the court erred in finding Wal-Mart's section 998 offers were invalid. We affirm.
Deborah was injured while shopping in one of Wal-Mart's stores in Fresno. She sued Wal-Mart for personal injuries, and her husband, Vincent, sued Wal-Mart for loss of consortium. On February 10, 2014, the jury returned a verdict in favor of Deborah on her claims and returned a verdict in favor of Wal-Mart on Vincent's claim.
Deborah timely filed a memorandum of costs seeking $30,603.79 as the prevailing party under sections 1032 and 1033.5, and California Rules of Court, rule 3.1700(a)(1). Under rule 3.1700, "A prevailing party who claims costs must serve and file a memorandum of costs. . . ."
Wal-Mart filed a memorandum of costs seeking $176,295.83 under section 998, based on the Frasconas' failure to obtain a verdict more favorable than Wal-Mart's four offers of compromise. Under section 998, a plaintiff who refuses a reasonable pretrial settlement offer and subsequently fails to obtain a more favorable judgment is penalized by a loss of prevailing party costs and an award of costs in the defendant's favor. (§ 998, subd. (c)(1); Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 128.) Prior to the commencement of trial, Wal-Mart offered the Frasconas four offers of compromise, ranging from $10,000 to $200,000. The Frasconas rejected all four offers.
Wal-Mart later filed an amended cost memorandum, for $178,758.19.
On February 28, 2014, the Frasconas filed a motion to tax or strike all of Wal-Mart's costs as set forth in the original and amended memoranda of costs. In their motion, the Frasconas asserted all four of Wal-Mart's section 998 offers were invalid, and Wal-Mart had not demonstrated the accuracy, necessity, or reasonableness of any of its claimed costs. As a result, the Frasconas argued all of Wal-Mart's requests for costs should be denied.
Wal-Mart opposed the motion but did not move to tax or strike any of Deborah's claimed costs. In its motion, Wal-Mart argued the only offer relevant to Wal-Mart's costs and experts' fees was Wal-Mart's first offer for $10,000.
At the first hearing on the Frasconas' motion to strike and tax Wal-Mart's costs, Wal-Mart presented another cost memorandum for $146,549.59. The court allowed the Frasconas additional time to review Wal-Mart's memorandum and to respond to it.
On April 10, 2014, following the conclusion of a second hearing, the court issued a minute order/order after hearing granting the Frasconas' motion to tax and strike all of Wal-Mart's costs. The court found none of the section 998 offers were valid. Wal-Mart did not move for reconsideration or relief from the April 10th order.
A court order was not entered awarding any of the parties their costs or experts' fees.
On June 11, 2014, Wal-Mart filed a notice of appeal from the trial court's April 10th order granting the Frasconas' motion to tax and strike Wal-Mart's memoranda of costs. The notice of appeal was filed more than 60 days from April 11, 2014, the date of the clerk's certificate of mailing.
This court notified Wal-Mart it was considering dismissing its appeal as untimely and directed Wal-Mart to file a letter brief to demonstrate the appeal was timely. Wal-Mart did not file a response, and its appeal was dismissed as abandoned on September 4, 2014.
On December 10, 2014, Deborah filed a motion in the trial court to interlineate the judgment to include statutory costs in the amount of $30,603.79. Deborah argued the court's February 10, 2014, judgment stated "`[r]ecoverable costs shall be awarded to the parties as allowed by law upon duly heard motions.'" The only motion filed as to costs was the Frasconas' motion to tax Wal-Mart's costs, which had been granted in its entirety.
Wal-Mart opposed the motion, arguing Deborah was not entitled to any costs because the trial court's April 10th order did not award costs to either party. Wal-Mart further asserted the court no longer had jurisdiction to grant Deborah's motion because doing so would effectively "issue a new order awarding costs to" Deborah and would improperly amend the judgment almost a year after it had been entered. Wal-Mart added, if Deborah was entitled to prevailing party costs, then Wal-Mart was entitled to $146,549.59 in costs as the prevailing party on Vincent's claims.
On January 5, 2015, the trial court issued a tentative ruling granting Deborah's motion to interlineate the judgment regarding costs. The court explained its April 10th order only granted Deborah's motion to tax or strike Wal-Mart's memorandum of costs. The order did not address or decide Deborah's entitlement to costs.
The court acknowledged the general rule that "`once a judgment has been entered, the trial court loses its unrestricted power to change that judgment.'" However, it noted a court retains the power to correct clerical errors at any time, even after a judgment has been entered. Deborah filed her memorandum of costs on February 12, 2104. Wal-Mart, on the other hand, never filed a motion to strike or tax costs. Accordingly, the clerk had a ministerial duty to immediately enter Deborah's costs against Wal-Mart pursuant to California Rules of Court, rule 3.1700(b)(4): "After the time has passed for a motion to strike or tax costs or for determination of that motion, the clerk must immediately enter the costs on the judgment." The court held the clerk's failure to do so was a clerical error made in recording the judgment. As a result, the court concluded it had jurisdiction to correct the judgment.
With respect to Wal-Mart's contention it was entitled to costs as a prevailing party as to Vincent, the court held Wal-Mart failed to ask the court to reconsider its decision to strike Wal-Mart's memoranda of costs on the ground that Wal-Mart is a prevailing party against Vincent.
Following the trial court's tentative ruling, Wal-Mart requested oral argument. Counsel for Wal-Mart argued that during the two prior hearings on Deborah's motion to tax or strike Wal-Mart's costs, the court stated twice it did not consider either party prevailing, and thus, "neither side should get costs." In reliance on that decision, counsel for Wal-Mart stated he and his client had agreed not to appeal the court's decision.
On February 19, 2015, the court issued an order adopting its tentative ruling. In its order, the court noted the transcripts from the two prior hearings on the motion to tax or strike Wal-Mart's costs failed to show any intention to deny Deborah her reasonable costs of the suit. The court further held there was no evidence Wal-Mart had decided not to appeal the court's April 10th decision granting Deborah's motion to tax or strike costs "in light of the court's unexpressed intention to have each party to bear its own costs."
On March 30, 2015, Wal-Mart filed a notice of appeal from the trial court's February 19, 2015, order granting Deborah's motion to interlineate the judgment.
On July 28, 2015, while the second appeal was pending, Wal-Mart filed a motion in the trial court for relief from the February 19, 2015, order pursuant to section 473. Specifically, Wal-Mart sought an order relieving it from the court's "most recent judgment interlineating costs, or in the alternative, an Order awarding [Wal-Mart] statutory costs of $34,890.53, an Order granting [Wal-Mart] a rehearing on [the Frasconas'] Motion to Tax [Wal-Mart]'s costs, or an Order granting a rehearing on the validity of the CCP 998 Offers."
Wal-Mart claimed the February 19, 2015, order was the result of surprise and inadvertence by defense counsel. It argued counsel believed the court did not award Deborah costs and the court had no intention to award costs to any party. As a result, counsel advised Wal-Mart not to pursue the appeal of the order granting Deborah's motion to tax and strike Wal-Mart's costs.
Deborah opposed the motion on several grounds, asserting: the motion was untimely, the court lacked jurisdiction to consider the motion while the case was on appeal, and Wal-Mart had failed to demonstrate surprise or excusable neglect. The trial court issued a tentative ruling stating Wal-Mart's motion for relief under section 473, subdivision (b) was taken off calendar due to Wal-Mart's pending appeal.
In September 2015, Wal-Mart paid the judgment in favor of Deborah in full, including the jury's award, interlineated costs, and postjudgment interest. Deborah filed a satisfaction of judgment. Wal-Mart then dismissed its second appeal.
On September 21, 2015, Wal-Mart filed a second motion for relief under section 473. Wal-Mart sought an order awarding it statutory costs in the amount of $34,890.53, an order granting it rehearing on the Frasconas' motion to tax or strike Wal-Mart's costs, or an order granting rehearing on the validity of the section 998 offers.
On October 27, 2015, the trial court denied Wal-Mart's motion. Because Wal-Mart sought an award of statutory costs as to Wal-Mart's verdict against Vincent, rehearing on the Frasconas' motion to tax Wal-Mart's costs, or rehearing on the validity of Wal-Mart's section 998 offers, the court stated "it is clear that [Wal-Mart] is moving for relief from the Court's April 10, 2014 order granting [the Frasconas'] motion to tax [Wal-Mart]'s memorandum of costs in its entirety. . . ." The court held Wal-Mart's motion was untimely. Subdivision (b) of section 473 provides an application for relief "shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken."
The court also denied the motion on its merits "for the reasons stated in the court's previous orders, and specifically, its order of February 19, 2015."
Wal-Mart contends the trial court abused its discretion by denying its motion for relief under section 473. The Frasconas contend Wal-Mart's motion was untimely and was properly denied on its merits.
We conclude Wal-Mart has failed to show the trial court abused its discretion in denying Wal-Mart's section 473 motion. Not only did Wal-Mart fail to show the motion had been timely filed, it also failed to show it should be relieved from the trial court's order or orders based on defense counsel's "mistake, inadvertence, surprise, or excusable neglect." (§ 473, subd. (b).)
An order granting discretionary relief under section 473, subdivision (b) is subject to the abuse of discretion standard of review. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) The test for abuse of discretion is whether the trial court's decision exceeds the bounds of reason. (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249; accord, Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1318-1319.)
Section 473, subdivision (b) provides for both discretionary and mandatory relief. The discretionary relief provision of section 473, subdivision (b) provides the following: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect."
A party who seeks discretionary relief under section 473, subdivision (b) on the basis of mistake or inadvertence of counsel must demonstrate such mistake, inadvertence, or general neglect was excusable. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 (Zamora).) When determining whether an attorney's mistake or inadvertence was excusable, "the court inquires whether `a reasonably prudent person under the same or similar circumstances' might have made the same error." (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.) Thus, section 473, subdivision (b) only allows relief from attorney error "`fairly imputable to the client, i.e., mistakes anyone could have made.'" (Zamora, supra, at p. 258, quoting Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682.) Attorney conduct falling below the professional standard is not excusable. (Zamora, at p. 258.) "`To hold otherwise would eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.'" (Ibid.)
A party seeking relief under section 473 must be diligent. (Zamora, supra, 28 Cal.4th at p. 258.) A request for relief must be made "within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (§ 473, subd. (b).)
Wal-Mart contends the trial court erroneously held its motion was untimely, "even though [Wal-Mart] filed the motion at issue within six months of July 29, 2016 [sic]." Wal-Mart filed its first section 473 motion on July 28, 2015, and its second section 473 motion on September 21, 2015. Thus, contrary to Wal-Mart's assertion, it appears to be arguing a relation-back theory. That is, Wal-Mart's second motion was timely because its first motion had been timely filed. We reject this theory.
First, Wal-Mart cites no legal support for its theory. Wal-Mart complains there was no way it could have had its first motion heard because its appeal of the order interlineating the judgment was pending. That, however, was a consequence Wal-Mart should have anticipated when it decided to pursue an appeal rather than file a motion for relief under section 473.
As a general rule, "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby." (§ 916, subd. (a).) This means the trial court is divested of jurisdiction to act on matters embraced or affected by the appealed judgment or order. The purpose of this automatic stay is to prevent a trial court from rendering an appeal futile by altering the judgment, or conducting proceedings that may affect the judgment or order. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189-190.)
Wal-Mart's decision to appeal the February 10, 2015, order divested the trial court of jurisdiction to hear its first section 473 motion, a foreseeable consequence based on the plain language of section 473 and the general rule we have discussed. "The duty of competence imposed on attorneys includes the obligation to know `"those plain and elementary principles of law which are commonly known by well informed attorneys,"' and also `"to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques."'" (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1414.)
By the time Wal-Mart had abandoned its appeal and filed a second motion under section 473, more than six months had passed from February 19, 2015, the date the court's order was entered granting Deborah's motion to interlineate. A request for relief under section 473 must be filed "within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (§ 473, subd. (b), italics added.) Wal-Mart has failed to direct us to any legal authority permitting the date of its second section 473 motion to relate back to the filing date of its first section 473 motion. Moreover, the plain language of section 473 appears to reject such a possibility.
Second, the section 473 motion at issue here does not specify what judgment, dismissal, order, or proceeding it seeks relief from. While Wal-Mart's first motion plainly sought relief from the trial court's February 19, 2015, order interlineating the judgment, Wal-Mart satisfied the judgment in favor of Deborah in full prior to filing its second 473 motion. We do not suggest Wal-Mart waived its right to appeal as a result. However, its satisfaction of the judgment further obscures which judgment or order it is seeking relief from.
Wal-Mart's theory is only further complicated by the fact that most of the relief it seeks was untimely even as to Wal-Mart's first section 473 motion. Wal-Mart's first motion was timely only to the extent it requested relief from the February 19, 2015, order interlineating the judgment. It was untimely insofar as it sought an order awarding Wal-Mart $34,890 in statutory costs, an order granting Wal-Mart rehearing on the Frasconas' motion to tax Wal-Mart's costs, or an order granting rehearing on the validity of the section 998 offers. This relief was based on the court's April 10, 2014, order granting the Frasconas' motion to tax Wal-Mart's memorandum of costs in its entirety. Neither Wal-Mart's first nor its second section 473 motion was filed within six months of the court's April 10, 2014, order.
Wal-Mart contends even if judgment is satisfied as to Deborah, there is still an appealable issue: "the decision by this Court to uphold the trial court's decision to award costs to Deborah Frascona over a year after trial establishes authority that a party situated like [the Frasconas] could wait and have costs awarded years after trial in perpetuity." As we have explained, however, Wal-Mart failed to timely challenge the trial court's order granting Deborah's motion to interlineate the judgment. (Cal. Rules of Court, rule 8.104(a)(1)(A), (B) [appeal is timely if the notice of appeal is filed within 60 days of service of notice of entry of judgment].) Because Wal-Mart failed to timely appeal the court's February 19, 2015, order, and it failed to timely file its section 473 motion seeking relief from that order, we do not have jurisdiction to consider this issue.
Wal-Mart further contends the court failed to exercise its discretion by not offering an explanation for its ruling on the merits of Wal-Mart's second section 473 motion. According to Wal-Mart, the court's failure to exercise its discretion is itself an abuse of discretion.
Although the trial court was not compelled to consider the merits of Wal-Mart's untimely motion, the record shows the court did reach the merits of Wal-Mart's claims. The October 27, 2015, order states the court denied Wal-Mart's motion for relief "on the merits for the reasons stated in the court's previous orders, and specifically, its order of February 19, 2015." Based on the court's previous orders, we conclude the court exercised its discretion appropriately in denying Wal-Mart's section 473 motion for relief.
Assuming Wal-Mart had timely filed its section 473 motion, the trial court properly concluded the motion failed on its merits. Wal-Mart failed to prove the judgment it seeks relief from was obtained through counsel's "mistake, inadvertence, surprise, or excusable neglect." (§ 473, subd. (b).) As the moving party, Wal-Mart had the burden to prove "mistake, inadvertence, surprise, or excusable neglect." (Ibid.; see In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 88 [party seeking relief under § 473 bears burden of proof].) Wal-Mart claimed its attorney reasonably believed the court decided the parties would bear their own costs based upon the court's "refusal" to enter an order awarding costs to Deborah, and given Deborah's failure to seek such an order until after Wal-Mart's first appeal was dismissed. Wal-Mart argued there was no way it would have walked away from getting costs, unless the court denied costs to Deborah as well.
The trial court reviewed transcripts from the hearings on the motion to tax costs and concluded Wal-Mart's argument was not supported by the record. In its February 19, 2015, ruling, the court noted Wal-Mart never filed a motion to tax Deborah's costs at any time, and it had abandoned its untimely appeal on the court's ruling granting Deborah's motion to tax Wal-Mart's costs. According to the court: "There was no `trade-off' of not appealing that decision in light of the court's unexpressed intention to have each party bear its own costs. There is no evidentiary support for that argument."
We have independently reviewed the transcripts and we agree with the court's finding that there is no evidence to suggest a "trade off" had occurred. The court never suggested it intended to deny Deborah the reasonable costs of her suit. If counsel was under the mistaken impression the court intended not to award costs to any party, the mistake was not reasonable. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206 ["[m]istake is not a ground for relief under section 473, subdivision (b), when `the court finds that the "mistake" is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law'"].)
Deborah was a prevailing party under section 1032, subdivision (a)(4), and as such, she was "entitled as a matter of right to recover costs" (§ 1032, subd. (b)), provided she timely filed a memorandum of costs (Cal. Rules of Court, rule 3.1700(a)(1)), which she did. Wal-Mart, on the other hand, never filed a motion to tax or strike costs. Once the time had passed for Wal-Mart to do so, the clerk was required to "immediately enter the costs on the judgment." (Cal. Rules of Court, rule 3.1700(b)(4).) Because the clerk neglected to enter costs on the judgment, the court was permitted to correct the judgment to enter costs on behalf of Deborah against Wal-Mart.
Wal-Mart complains the Frasconas failed to serve their motion to interlineate costs until December 10, 2014, eight months after the court issued its order failing to award costs to either party. As a result, Wal-Mart suggests it was surprised by Deborah's delay in seeking to interlineate the judgment for costs. However, this does not support a claim of surprise under section 473.
"The term `surprise,' as used in section 473, refers to "`some condition or situation in which a party . . . is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against."'" (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611, quoting Credit Managers Assn. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173.) Had Wal-Mart exercised ordinary prudence by clarifying whether the court intended to have each party bear its own costs, it would have guarded against any surprise caused by the trial court's ruling interlineating the judgment.
Wal-Mart asserts the trial court's failure to award costs to either party was a deliberate decision by the court rather than clerical error. "The difference between judicial and clerical error rests not upon the party committing the error, but rather on whether `it was the deliberate result of judicial reasoning and determination.'" (Aspen Internat. Capital Corp. v. Marsch (1991) 235 Cal.App.3d 1199, 1204.) Here, the trial court found no evidence it had intended to deny Deborah the reasonable costs of her suit. As a result, the court rejected Wal-Mart's contention the court's failure to award any party costs had been the result of a judicial determination. As noted, our independent review of the record discloses no evidence to suggest the trial court had intended to deny Deborah the reasonable costs of her suit.
We conclude Wal-Mart's section 473 motion was properly denied as untimely. We further conclude the trial court exercised its discretion appropriately in denying the motion on its merits. In light of our conclusion, we need not reach Deborah's argument that Wal-Mart's motion was also properly denied under California's "one shot" rule.
Wal-Mart also challenges the trial court's ruling finding Wal-Mart's section 998 offers were invalid. Wal-Mart waived its right to challenge the court's ruling on the section 998 offers by failing to move for reconsideration or relief from the court's April 10, 2014, order striking Wal-Mart's memoranda of costs, by failing to timely appeal the order, and then by abandoning its appeal. Even if Wal-Mart had timely challenged the court's ruling on the section 998 offers, Wal-Mart does not explain why the court's ruling was erroneous. (Roden v. AmerisourceBergen Corp. (2010) 186 Cal.App.4th 620, 648-649 [a party's failure to support argument with citation to legal authority results in waiver].) The issue is therefore deemed waived.
Finally, Wal-Mart challenges the court's April 10, 2014, order striking all of Wal-Mart's costs and denying Wal-Mart statutory costs of $34,890.53 as the prevailing party as to Vincent's claims. Wal-Mart claims counsel's mistake, inadvertence, surprise, and excusable neglect led to its "decision not to pursue an appeal which could have resulted in [Wal-Mart] recovering $34,890.53 in costs. . . ." However, Wal-Mart never argued it was entitled to statutory costs as the prevailing party, nor did it raise the issue in opposition to the Frasconas' motion to strike or tax Wal-Mart's costs in their entirety. Rather, Wal-Mart argued it was entitled to costs pursuant to its section 998 offers.
Although Wal-Mart claims it decided not to pursue an appeal of the court's order, "which could have resulted in [Wal-Mart] recovering $34,890.53 in costs," Wal-Mart did attempt to pursue an appeal. However, not only did Wal-Mart fail to timely file its appeal, it abandoned its appeal. The first time Wal-Mart claimed it was entitled to statutory costs as the prevailing party was in opposition to Deborah's December 10, 2014, motion to interlineate the judgment—long after the April 10, 2014, order denying Wal-Mart's costs in their entirety had become final. Further, counsel for Wal-Mart stated three different times at the January 6, 2015, hearing on Deborah's motion that Wal-Mart was not attempting to recover statutory costs. Thus, although this court has no jurisdiction to reach the merits of Wal-Mart's claim, it appears Wal-Mart waived recovery of its statutory costs.
The order is affirmed. Costs are awarded to plaintiffs.
GOMES, Acting P.J. and FRANSON, J., concurs.
