Legal News and Appellate Tips

Just won a lawsuit? Before you file your memo of costs, read the dissent in Srabian v. Triangle Truck Center (D5 Aug. 12, 2022 No. F080066) (nonpub. opn.). The upshot: A memo of costs needs to be signed under penalty of perjury. It is an evidentiary showing, after all.

In this, the Judicial Council form MC-010 for the memo of costs has been letting us all down. The memo of costs is required to be “verified,” and that means signed under penalty of perjury. But the form doesn’t have that language. So if you use it, expect your opponent may deploy Justice Kathleen Meehan’s sound reasoning in her dissent.

Justice Meehan noted that the Judicial Council did get it right in its form for costs after appeal. Form APP-013 includes a penalty-of-perjury recital.

Justice Meehan underscores the importance of the penalty-of-perjury requirement by referencing the fact that the memo of costs here contained a number of obvious inaccuracies, and yet the trial court awarded the exact amount stated on the memo. Thus, the defect did prejudice the appellant: “[T]his is exactly why the sworn nature of the cost memorandum is important—it reminds all claimants and their attorneys of the need for accuracy and the grave responsibility they have with respect to the truth and correctness of the costs being sought.”

A recent case shows how recovery of costs can involve large dollar amounts – over $1.5 million – and the application of subtle legal principles and appellate procedure.

After four years of litigation in City of Los Angeles v. Pricewaterhousecoopers, LLP (D2d5 Jul. 8, 2021) no. B305583 (nonpub. opn.), the city eventually dismissed the case, and the contractor sought nearly $1.1 million in costs for electronic discovery. The trial court denied them all, and the contractor appealed.

After an interesting discussion on the appealability of the cost order, the Court of Appeal noted the trial court's statements on the record were ambiguous whether it misunderstood the scope of its authority, or whether it was exercising discretion. But the court ultimately held the trial court misunderstood its authority and thus committed reversible error. What convinced the Court of Appeal the trial court had erred on the law? "Although it is a close question in this case," the court noted, "given the City's [incorrect] primary argument that the costs ... are never recoverable ... we cannot presume the trial court understood the extent of its discretion...."

Takeaway: If you manage to persuade the trial court of your legal proposition, why not ask the trial court to exercise its discretion in your favor as well, just to be safe? Had the trial court also based its ruling on its discretion, the outcome likely would have been much different.

Great news, you won your trial! Bad news, you only used half of your trial exhibits, so your client can't recover costs for the unused exhibits. That could change. The […]