Filed 6/30/15 Jones v. Pierce CA1/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                  DIVISION TWO



RICHARD PAUL JONES,
      Plaintiff and Appellant,                                          A139665
      v.
ALBERTINA PIERCE, Individually and as                                   (Lake County Super. Ct.
Executor, etc., et al.,                                                  No. CV402825)
      Defendants and Respondents.

         Dennis Stuart Pierce (Pierce) and Richard Paul Jones (Jones) were involved in a
vehicle accident. Jones sued Pierce for negligence and Pierce made an offer to
compromise pursuant to Code of Civil Procedure section 998.1 Jones did not accept the
offer and the matter proceeded to trial. Pierce died while the litigation was pending, and
Jones amended his complaint to substitute Pierce’s estate and Albertina Pierce as
successors in interest (defendants).
         A jury found Pierce negligent and awarded Jones damages falling below the
amount in Pierce’s section 998 offer. Defendants filed a memorandum of costs and
subsequently asked the court to correct the judgment to include their requested costs.
Months after the deadline for filing a motion to tax costs passed, Jones filed a motion
pursuant to section 473, subdivision (b), requesting relief from his failure to oppose
defendants’ cost bill. He claimed that he was entitled to relief because he did not have an


         1   All further unspecified code sections refer to the Code of Civil Procedure.
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attorney and was unaware of the time limits and rules related to cost motions. The trial
court denied Jones’s section 473 motion and filed an amended judgment awarding
defendants their costs. Jones, who is in propria persona, appeals and claims that the trial
court should have granted his motion for relief and considered his untimely opposition to
the costs. We are not persuaded by Jones’s arguments and affirm.
                                     BACKGROUND
       This case arises from an automobile accident that occurred on April 16, 2005.
Jones asserted that a vehicle driven by Pierce hit the rear of his vehicle. The parties, who
both had legal counsel at the time, submitted to nonbinding arbitration and, on July 19,
2007, the arbitrator awarded Jones $13,035.67. Jones rejected the arbitration award, and
requested a jury trial de novo.
       On September 27, 2007, Pierce made an offer to compromise pursuant to section
998. He offered to pay Jones $7,500 in exchange for Jones’s dismissing with prejudice
his claims against Pierce. The offer provided that both parties would bear their own costs
and attorney fees. Jones did not accept the offer.
       Pierce died while the litigation was pending and Jones, in propria persona, pursued
his claims against defendants. After Jones presented his case, defendants moved for
nonsuit, which the trial court granted. Jones appealed, and we reversed and remanded for
further proceedings in our nonpublished opinion, Jones v. Pierce (Feb. 6, 2012,
A130580).
       At the end of the second trial, the superior court submitted the matter to the jury.
On August 30, 2012, the jury found Pierce liable for negligence and awarded Jones
$2,229 in damages. The court entered judgment in favor of Jones on October 2, 2012.2
       On September 14, 2012, defendants filed a memorandum of costs seeking
$33,198.06 pursuant to sections 998 and 1141.2. More than two months later, on


       2 Jones appealed this judgment. On May 20, 2013, we dismissed Jones’s appeal as
it was untimely. He filed his notice of appeal almost six months after entry of judgment
had been served, which was well beyond the 60-day time period for filing a notice of
appeal. (See Cal. Rules of Court, rules 8.104(a)(1)(A) & 8.104(a)(1)(B).)
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November 27, 2012, defendants filed a proposed amended judgment awarding them
costs. The proposed judgment was returned to counsel with a memorandum from Judge
Stephen O. Hedstrom stating that defendants appeared to be relying on sections 998 and
1141.21 as authority for awarding costs to them but they failed to provide evidence of a
served written offer to compromise and section 1141.21 did not apply because the record
showed that the court granted Jones a fee waiver for appeals filed on December 7, 2010
and on December 3, 2012. The court noted that section 1141.21, subdivision (b) provides
that “[i]f the party electing the trial de novo has proceeded in the action in forma pauperis
and has failed to obtain a more favorable judgment, the costs and fees . . . shall be
imposed only as an offset against any damages awarded in favor of that party.”3 The
court thus refused to sign the first amended judgment.
         On March 12, 2013, defendants filed a motion to correct the judgment to include
their costs and attached their section 998 offer made to Jones. Defendants argued Jones
never filed a motion to tax costs and, under section 998, defendants were entitled to
prejudgment costs in the amount of $33,198.06.
         Jones, in propria persona, filed a response on April 8, 2013. He contended that
defendants’ offer to compromise under section 998 had been an unfair and unacceptable
offer.
         The trial court held a hearing on April 15, 2013. It ordered further briefing on
whether section 1141.21, subdivision (b), which limits awards of costs granted under the
arbitration program for parties proceeding in forma pauperis, similarly limited costs
awarded under section 998. It set a hearing for May 20, 2013.
         At the hearing on May 20, 2013, the trial court indicated that it was going to award
the costs defendants requested. Jones responded that defendants had not met the good
faith requirement under section 998, as the offer was unreasonable. Jones also stressed
that he did not know that he had to file a motion to tax costs.



         3   The record does not establish that Jones proceeded in the superior court in forma
pauperis.
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       The trial court responded that it was Jones’s “choice to proceed to trial” and the
jury decided that his case was worth less than both the section 998 offer and the
arbitration award. The court stated, “The issues about fairness and so forth could have
been addressed in a motion to tax those costs.” The court maintained that it had
discretion to consider Jones’s argument but concluded that “it would be inappropriate at
this point to not impose the costs that the defendant[s are] seeking for the costs of their
trial. And primarily the bulk of that amount is—looks like in expert fees and so forth,
which they needed to present.”
       The trial court elaborated: “And in this case, apparently, in the jury’s mind at
least, that expert testimony was somewhat convincing based on the type of verdict [it]
came with. [¶] So I realize that the outcome in this is harsh. The amount of costs in
putting this trial on far exceed the amount of the judgment that the jury gave you. But the
court is going to go ahead and impose costs as sought by the defense here.” The court
added that Jones’s decision to represent himself did not entitle him to special
consideration.
       Jones told the court that, on May 15, 2013, he had filed pursuant to section 473,
subdivision (b), a motion for relief from his failure to file a motion to tax costs. The trial
court responded that it believed the time to receive the requested relief had lapsed but
Jones was entitled to a hearing.
       On June 24, 2013, the trial court held the hearing on defendants’ request to amend
the judgment to include costs and also considered Jones’s request for relief pursuant to
section 473, subdivision (b). Jones told the court that he was unaware of the time limits
to file a section 473 motion. He stressed that he had an attorney for the arbitration but his
attorney abandoned him after telling him the arbitration award was the best he could do
for him. Jones also argued that defendants were not entitled to costs under section 998
because Jones’s medical bills exceeded the offer made by defendants and “[t]here was no
way” that he could accept their offer. He maintained that the offer was not valid because
it was not reasonable; he emphasized that it was about one-half the amount of the
arbitration award.

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       At the end of the hearing, the trial court remarked that the jury awarded Jones a
sum significantly less than the amount in defendants’ section 998 offer. Additionally, the
court pointed out that Jones’s attorney advised him that he did not believe the matter
should go to trial, which should have been a warning to Jones that his case was not worth
what he believed it was worth. The court noted that Jones did not provide any reason for
missing the deadline to file a motion to tax costs and his argument was simply that the
offer was too low. The court stated that it believed it had discretion to consider Jones’s
untimely request to tax costs, but concluded that the offer was reasonable and awarded
defendants the requested costs.
       The trial court concluded: “And Mr. Jones, I got to tell you, this doesn’t make me
feel good to do this. I mean, you won your lawsuit, but it’s going to cost you $30,000,
basically, in round numbers, for the costs in this. But this is one of those cases that I
think illustrates the purpose of that statute that allows the other party to attach your costs
when someone charges ahead into litigation without a good evaluation of the case and
what their chances are. [¶] And in this case, there were several things, and I went over
them earlier. One was, you had the advice of a lawyer. The lawyer didn’t think it was
worth proceeding on. You have had various opportunities to settle and to evaluate the
case, and so that will be the judgment.”
       On June 24, 2013, the trial court filed the amended judgment, awarding defendants
costs in the amount of $33,198.06. The judgment stated that Jones did not file a timely
motion to tax costs. Notice of entry of the amended judgment was served on Jones on
July 2, 2013. Jones filed his timely notice of appeal on August 30, 2013.
                                       DISCUSSION
                       I. The Law on Section 998 Offers and Costs
       Defendants made a section 998 offer to Jones for $7,500, which he did not accept.
After trial, the jury awarded Jones $2,229 in damages.
       Section 998, subdivision (c)(1) provides: “If an offer made by a defendant is not
accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff
shall not recover his or her postoffer costs and shall pay the defendant’s costs from the

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time of the offer. In addition, . . . the court or arbitrator, in its discretion, may require the
plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who
are not regular employees of any party, actually incurred and reasonably necessary in
either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case
by the defendant.”
       A verified memorandum of costs is prima facie proof of their propriety, and it is
the responsibility of the party opposing the costs to point out errors. (Ray v. Clark (1922)
57 Cal.App. 467, 468-469.) California Rules of Court, rule 3.1700(b)(1), provides, “Any
notice of motion to strike or to tax costs must be served and filed 15 days after service of
the cost memorandum. . . .” Time to file and respond to a cost bill may be extended
under California Rules of Court, rule 3.1700(b)(3), which reads: “The party claiming
costs and the party contesting costs may agree to extend the time for serving and filing
the cost memorandum and a motion to strike or tax costs. . . . In the absence of an
agreement, the court may extend the times for serving and filing the cost memorandum or
the notice of motion to strike or tax costs for a period not to exceed 30 days.”
       “The ‘failure to file a motion to tax costs constitutes a waiver of the right to
object’ ” to a cost bill. (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289-290.) “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.” (Cal. Rules of Court, rule
3.1700(b)(4).) This is a ministerial act, involving nothing more than a simple
mathematical calculation; no exercise of judicial judgment is involved if the plaintiff
waived any objection to defendants’ cost bill. (See Rochin v. Pat Johnson Manufacturing
Co. (1998) 67 Cal.App.4th 1228, 1237 [court retains power to correct clerical errors in a
judgment that has been entered].) Here, the trial court initially refused to enter
defendants’ costs on the judgment and the judgment was not amended to include the costs
until June 2013.
       Jones does not dispute that he did not file a timely response to defendants’ cost
bill. He maintains that the amended judgment should not have added defendants’ costs,


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as the trial court should have granted his motion pursuant to section 473, subdivision (b),
and permitted him to oppose defendants’ requested costs.
               II. Jones’s Motion Pursuant to Section 473, Subdivision (b)
       Section 473, subdivision (b) provides, in relevant part: “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. Application for this relief shall be
accompanied by a copy of the answer or other pleading proposed to be filed therein,
otherwise the application shall not be granted, and shall be made within a reasonable
time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding
was taken. . . .”
       Defendants contend the court did not have jurisdiction under section 473,
subdivision (b) to consider Jones’s motion. “The six-month time limit for granting relief
under section 473 is jurisdictional and relief cannot be granted under section 473 if the
application for such relief is instituted more than six months after the entry of the
judgment, order or proceeding from which relief is sought.” (Aldrich v. San Fernando
Valley Lumber Co. (1985) 170 Cal.App.3d 725, 735, fn.3; see also Rappleyea v.
Campbell (1994) 8 Cal.4th 975, 980.)
       Defendants point out that they filed their verified memorandum of costs on
September 14, 2012, and, under California Rules of Court, rule 3.1700(b)(1), Jones had
15 days after service of this memorandum to file his motion to tax costs. Since Jones
filed his section 473 motion in May 2013, more than six months beyond the deadline to
file opposition to the cost bill, defendants argue that the trial court did not have
jurisdiction to consider his request for relief.
       Here, as already noted, the trial court first refused to include defendants’ costs on
the judgment and the amended judgment with the costs was not filed until after Jones had
filed his section 473 motion. The deadline for filing the motion to tax costs did not
trigger the six-month period for filing the section 473 motion; the time period does not
commence until a timeliness objection is raised in a proceeding or the court enters costs

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on the judgment. (See Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1199-1200;
Colbrun Biological Institute v. DeBold (1936) 6 Cal.2d 631, 634.) Defendants have not
cited any proceeding, dismissal, judgment, or order that triggered the six-month time
limit prior to the hearing on defendants’ motion to amend the judgment to add costs.
Accordingly, we reject defendants’ assertion that the trial court was without jurisdiction
to consider Jones’s section 473 motion.
       The Supreme Court has held that, in the absence of a showing of prejudice, “the
trial court has broad discretion in allowing relief on grounds of inadvertence from a
failure to timely file a cost bill [or motion to tax costs].” (Pollard v. Saxe & Yolles Dev.
Co. (1974) 12 Cal.3d 374, 381.) We review the trial court’s denial of Jones’s requested
relief for an abuse of discretion. (See, e.g., Zamora v. Clayborn Contracting Group, Inc.
(2002) 28 Cal.4th 249, 257 (Zamora).)
       Jones’s sole argument in the trial court and on appeal is that he was entitled to
relief because he did not have legal counsel and did not know that he had to file a motion
to tax costs. He points out that the memorandum of costs did not include an instruction
or warning that he had only 15 days to respond or contest the requested costs. He asserts
that lay people are not held to the same standards as attorneys.
       Jones made the decision to proceed without counsel and must show that he
exercised reasonable diligence to avoid an undesirable judgment, as “[c]ourts neither act
as guardians for incompetent parties nor for those who are grossly careless of their own
affairs.” (Elms v. Elms (1946) 72 Cal.App.2d 508, 513.) “[T]he 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 (Bettencourt).)
       Jones’s argument that he should be excused because he did not have an attorney is
not persuasive. “The law does not entitle a party to proceed experimentally without
counsel and then turn back the clock if the experiment yields an adverse result. One who
voluntarily represents himself ‘is not, for that reason, entitled to any more (or less)
consideration than a lawyer. Thus, any alleged ignorance of legal matters or failure to

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properly represent himself can hardly constitute “mistake, inadvertence, surprise or
excusable neglect” as those terms are used in section 473.’ [Citation.] Rather, ‘when a
litigant accepts the risks of proceeding without counsel, he or she is stuck with the
outcome, and has no greater opportunity to cast off an unfavorable judgment than he or
she would if represented by counsel.’ [Citation.]” (Hopkins & Carley v. Gens (2011)
200 Cal.App.4th 1401, 1413.)
       Jones cites Zamora, supra, 28 Cal.4th 249 and Garcia v. Hejmadi (1997) 58
Cal.App.4th 674 in support of his argument that an unrepresented party is not held to the
same standard as an attorney. These cases are unavailing. Both of these cases explain
that an attorney’s mistake or inadvertence is excusable under section 473 only if the
mistake is the type “made by a person with no special training or skill.” (Garcia, at p.
684; see also Zamora, at p. 258.) We pointed out in Garcia that “[o]bviously, an
untrained person might be expected to make mistakes when performing the functions of
an attorney” and noted that an attorney is not excused when committing errors while
discharging strictly professional duties. (Garcia, at p. 684.) Neither Garcia nor Zamora
suggest that a person in propria persona may seek relief under section 473 when the error
results from a lack of knowledge of the law or legal procedure. To the contrary, these
two cases confirm that section 473 permits relief from error only when the error can be
“fairly imputable to the client, i.e., mistakes anyone could have made.” (Garcia, at p.
682; see also Zamora, at p. 258.)
       Jones also relies on Kaslavage v. West Kern County Water Dist. (1978) 84
Cal.App.3d 529 (Kaslavage) and Bettencourt, supra, 42 Cal.3d 270 to contend that these
cases involved more serious acts of negligence than his and the courts granted relief
under section 473. In Kaslavage, the plaintiff was injured while diving from an irrigation
pipe into a canal. The plaintiff’s attorneys did not discover until several months after the
claims period expired that the pipe was not owned by the same public entity that owned
the canal. (Id. at pp. 532-533.) The Court of Appeal reversed the trial court’s refusal to
grant relief under Government Code section 946.6 from the effect of the late filing of the
claim, because the evidence established that an “extensive investigation was conducted”

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and the “investigator’s actions were not devoid of diligence.” (Kaslavage, at pp. 536-
537.)
        Bettencourt, supra, 42 Cal.3d 270 involved a wrongful death action arising from a
fatal field trip sponsored by a city college. (Id. at p. 273.) The plaintiffs’ attorney
mistakenly filed a claim with the state, believing that the employees of the college were
state employees; they were actually employees of a community college district. (Id. at p.
274.) The Supreme Court concluded that the attorney’s failure to file a timely claim with
the correct public entity was one a reasonably prudent person would have made because
of the “confusing blend of state and local control and funding” for community colleges.
(Id. at pp. 276-278.) The court observed that the attorney had made an erroneous
assumption leading him to sue the wrong public entity, but otherwise had been diligent in
investigating and pursuing this action. (Id. at p. 278.) Furthermore, the court explained
that counsel had sought to remedy his mistake promptly. (Id. at p. 281.)
        In contrast to the mistakes made in Kaslavage and Bettencourt, Jones’s mistake
was not one that a prudent person would make. Moreover, Jones ignores that a party
seeking relief under section 473 must be diligent (Zamora, supra, 28 Cal.4th at p. 258),
and Jones did not demonstrate diligence. Defendants filed the memorandum of costs in
September 2012, and their proposed amended judgment awarding them costs at the end
of November 2012; Jones did not file his request for relief under section 473, subdivision
(b), until May 2013. He presented no evidence that he made any effort to ascertain the
rules related to requesting and opposing costs. Relief under section 473, subdivision (b)
is properly denied where the record shows ignorance of the law and lack of diligence in
ascertaining it. (Hopkins & Carley v. Gens, supra, 200 Cal.App.4th at pp. 1412-1413.)
        Jones made the decision to represent himself and “permitting exceptional
treatment of parties who represent themselves would lead to a quagmire in the trial
courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell,
supra, 8 Cal.4th at p. 985.) We agree with the trial court’s assessment that Jones failed to
provide a reasonable excuse for his failure to determine the rules related to opposing a
memorandum for costs; accordingly, the trial court did not abuse its discretion in denying

                                              10
Jones’s section 473 motion. (See Robbins v. Los Angeles Unified School Dist. (1992) 3
Cal.App.4th 313, 319 [trial court did not abuse its discretion by denying unrepresented
plaintiffs’ section 473 motion based on a mistake in law because plaintiffs made no effort
to ascertain the validity of their erroneous belief that the motion to dismiss was moot].)
       Since Jones did not file a motion to tax costs, he waived any challenge to
defendants’ memorandum of costs. (See, e.g., Douglas v. Willis, supra, 27 Cal.App.4th
at pp. 289-290 [failure to file a timely challenge to cost bill waives right to contest it later
on appeal]; see also Santos v. Civil Service Bd. (1987) 193 Cal.App.3d 1442, 1447
[same].) Therefore, we decline to consider Jones’s belated arguments that the section
998 offer was unreasonable and made in bad faith.
                                       DISPOSITION
       The judgment is affirmed. Jones is to pay the costs of appeal.




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                                 _________________________
                                 Kline, P. J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




Jones v. Pierce (A139665)




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