In Nevis Homes LLC v. CW Roofing Inc., 2013 DJDAR 6187(2013) the California Court of Appeal for the Second Appellate District decided a procedural issue pertaining filing a memorandum of costs. The court clarified the rules and stated that no statute or rule of court specifically exempts cost memoranda from the five-day extension rule for pleadings served by mail under California Code of Civil Procedure section 1013(a).

An association filed a lawsuit against a builder alleging defects in construction. The builder filed a cross action against a roofing company, one of the subcontractors on the project. The homeowners’ association later settled with the builder, and the builder soon thereafter settled with the roofer. 

After dismissal of the cross-complaint against the roofer, the builder mailed a notice of dismissal. However, counsel for the roofer did not file the cost bill until 19 days after the notice of dismissal was entered. 

The builder moved to strike the cost bill as untimely, arguing that the cost bill should have been filed within 15 days after the dismissal with no extension for mailing. The trial court granted the motion to tax costs in its entirety.

The Court of Appeal noted that California Rules of Court Rule 3.1700(a)(1) provides that a 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.

The court also noted that Code of Civil Procedure Section 1013 provides an extension of five days for cases of service by mail. 

The builder argued that costs memoranda were exempt from the five-day mailing extension pointing out that any reference to CCP§1013 was “conspicuously absent” from Rule 3.1700.  

However, the court of appeal could find no statute or rule of court which specified that the normal five-day extension for service by mail did not apply to a memorandum of costs. 

On that basis the court of appeal clarified the rule and stated that the five-day extension under CCP§1013(a) was fully applicable.