A Cost Bill Was Timely

Nevis Homes, LLC v. CW Roofing, Inc.
(Cal. Ct. of App., 2d Dist.), filed May 15, 2013

A homeowners’ association brought a construction defect action against Nevis Homes, LLC and other defendants. Nevis cross-complained against CW Roofing, Inc. (“CWRI”) and Daniel Suh, doing business as CW Roofing Co., among others.

The homeowners’ association settled with Nevis and Nevis settled with Suh and other cross‑defendants. The settlement agreement stated: “Each of the SETTLING PARTIES acknowledge and agree that each of them is to bear his, her, or its own costs.” The settlement agreement did not name CWRI as one of the “settling parties” nor did anyone sign the agreement on CWRI’s behalf. The agreement did provide, however, that “the release of [CWRI] by Defendants is a condition and material term of this settlement.”

After the “settling parties” signed the settlement agreement, Nevis dismissed its cross-complaint with prejudice as to all the cross-defendants including CWRI. Nevis mailed a written notice of entry of dismissal to CWRI on July 14, 2011. CWRI filed a cost bill on August 2, 2011. This was 19 days after Nevis mailed the notice of entry of dismissal.

Nevis moved to strike CWRI’s cost bill on the ground that it was untimely under California Rules of Court, rule 3.1700(a). That rule requires the cost bill to be filed within 15 days after the date of service of a written notice of entry of dismissal.

The trial court granted the motion to tax costs in its entirety. The court denied the parties’ motion for sanctions.

The Court of Appeal held that if a written notice of judgment or dismissal is served by mail within the State of California, the time for filing a memorandum of costs is extended by five days. Thus CWRI’s cost bill was timely.