Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV022999
Mihara, J.
Plaintiff Shaylene Fitzgerald appeals from the trial court’s June 2010 corrected judgment awarding defendant El Camino Hospital $20,151.09 in costs after it prevailed in plaintiff’s action against it. Plaintiff contends that the trial court could not award defendant costs because defendant did not timely serve its cost memorandum and the court had lost jurisdiction after plaintiff’s previous appeal from the judgment to “amend” the judgment to include the amount of defendant’s costs. We reject her contentions and affirm the corrected judgment.
I. Background
Plaintiff sued defendant. After a jury trial, the court entered judgment for defendant on June 29, 2007. The judgment expressly provided that defendant was entitled to recover its costs from plaintiff. One of defendant’s codefendants filed and served by mail a notice of entry of judgment on the same day that judgment was entered. On July 13, 2007, defendant filed a memorandum of costs seeking over $90,000 in costs, including $72,960.91 in expert witness fees. The memorandum of costs was served on plaintiff on July 18 by both mail and facsimile. At the time of service, defendant offered in writing to extend plaintiff’s time for filing a motion to tax costs.
On August 3, 2007, plaintiff filed a motion to strike the cost memorandum on the ground that it had not been timely served. Plaintiff asserted that defendant was required to serve the cost memorandum within 15 days after the mailing of the notice of entry of judgment. Defendant responded that the memorandum was timely served because the 15-day time period was extended by five days since the notice of entry had been served by mail.
Defendant also alternatively argued that, if the memorandum was not timely, the court had discretion to allow it to be filed late under California Rules of Court, rule 3.1700 or should grant defendant relief under Code of Civil Procedure section 473 for its inadvertence in filing the cost memorandum late. Defendant submitted declarations from its attorney and his assistant stating that the attorney had instructed the assistant to serve the memorandum on the same day it was filed, but she had inadvertently failed to do so. Because the attorney went on vacation the next day, he did not realize that his assistant had failed to serve the memorandum as directed. Plaintiff replied that the 15-day time period was not extended by the fact that the notice of entry was served by mail, that the court lacked the power to extend time after it had expired, and that relief under Code of Civil Procedure section 473 had not been sought “at the earliest opportunity.”
On September 24, 2007, plaintiff filed a notice of appeal from the judgment and from “the orders awarding costs to El Camino Hospital and [another defendant].”
On September 25, 2007, the trial court entered an order finding that defendant had timely served its memorandum of costs because the time period had been extended by five days. Plaintiff thereafter filed a motion to tax costs, and defendant filed opposition to that motion. On December 10, 2007, the trial court entered an order granting the motion to tax costs as to the expert witness fees.
It also concluded that it “would have granted” defendant’s motion for relief under Code of Civil Procedure section 473 if the memorandum had not been timely served.
The appellate record does not include plaintiff’s motion to tax costs, but it must have been filed as defendant filed an opposition to it.
On November 5, 2009, this court issued its remittitur in plaintiff’s appeal from the judgment. The judgment for defendant was affirmed, and defendant was awarded its costs on appeal.
In December 2009, defendant’s attorney sent a letter to the trial court asking that the judgment be amended to include the amount of the untaxed costs. On May 14, 2010, defendant formally moved to amend the judgment to specify that $20,151.09 in costs had been awarded to defendant. Plaintiff opposed the motion on the ground that the trial court had lost jurisdiction to amend the judgment. On June 22, 2010, the trial court corrected the judgment to specify that defendant had been awarded $20,151.09 in costs. Plaintiff timely filed a notice of appeal from the corrected judgment.
The total amount sought in the memorandum of costs exceeded the total of the untaxed costs and the expert witness fees, even though these were the only costs sought. No explanation appears in the record for this discrepancy, which is not at issue in this appeal.
II. Discussion
A. Timeliness of Service of Memorandum of Costs
“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700(a)(1), italics added.) “Service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California....” (Code Civ. Proc., § 1013, subd. (a).)
All further rule references are to the California Rules of Court.
Plaintiff claims that Code of Civil Procedure section 1013, subdivision (a) does not apply to the period for filing a cost memorandum under rule 3.1700(a) because rule 3.1700(a) “specifically states that the 15 days begins to run with the mailing of the notice of entry of judgment whether by the clerk o[r] by a party.” (Italics added.) This claim is patently inaccurate. Rule 3.1700(a) explicitly distinguishes between “the date of mailing... by the clerk” and “the date of service” by a party. (Italics added.) Here, the notice of entry of judgment was served by a party, not mailed by the clerk. Thus, under rule 3.1700(a) the 15-day period was triggered not by the “date of mailing” but by the “date of service of written notice.”
Code of Civil Procedure section 1013, subdivision (a) plainly applied. The “right or duty to do any act” was defendant’s right or duty to serve a cost memorandum. The “time period... prescribed by... rule of court” was the 15-day time period prescribed by rule 3.1700(a). The “service by mail” that triggered the 15-day period was the service of the notice of entry by mail. Under these circumstances, Code of Civil Procedure section 1013, subdivision (a) explicitly provides “the time period... shall be extended five calendar days, upon service by mail.” As the notice of entry was served by mail, the 15-day time period was extended by five days, and defendant’s cost memorandum was timely filed.
Plaintiff’s reliance on Oppenheimer v. Ashburn (1959) 173 Cal.App.2d 624 (Oppenheimer) is misplaced. In Oppenheimer, a statute required a memorandum of costs to be filed no later than 10 days “ ‘after the entry of judgment.’ ” (Oppenheimer, at p. 635.) Unlike the time period at issue here, the time period at issue in Oppenheimer was triggered by the entry of judgment itself rather than by the service of a notice of entry. Although plaintiff disparages the trial court’s reliance on Robinson v. Grossman (1997) 57 Cal.App.4th 634 (Robinson), that case is correct and precisely on point. “A prevailing party must file a memorandum of costs within 15 days of service of notice of entry of judgment. (Cal. Rules of Court, rule 870(a)(1) [the predecessor to rule 3.1700(a)].) If service of the notice is by mail within California, the period within which the memorandum must be filed is extended by five days. (Code Civ. Proc., § 1013, subd. (a).)” (Robinson, at p. 649.) Plaintiff’s contention lacks merit.
B. Jurisdiction To Correct Judgment To Insert Amount of Costs
Plaintiff contends that the trial court lacked jurisdiction to “amend” the judgment in June 2010 to include the amount of the costs.
“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.” (Rule 3.1700(b)(4), italics added.) “When a judgment includes an award of costs and fees, often the amount of the award is left blank for future determination. [Citation.] After the parties file their memoranda of costs and any motions to tax, a postjudgment hearing is held and the trial court makes its determination of the merits of the competing contentions. When the order setting the final amount is filed, the clerk enters the amounts on the judgment nunc pro tunc.” (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 996-997, italics added.) Thus, the clerk has a ministerial duty to enter the amount of the costs on the judgment “immediately” after a ruling on a motion to tax costs, and the clerk’s fulfillment of this duty is retroactive to the entry of the judgment.
Here, the clerk failed to perform this ministerial duty. “ ‘The general rule is that once a judgment has been entered, the trial court loses its unrestricted power to change that judgment. The court does retain power to correct clerical errors in a judgment which has been entered.’ ” (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1237.) “A trial court may correct a clerical error, but not a judicial error, at any time. A clerical error is one that is made in recording the judgment; a judicial error is one that is made in rendering the judgment.” (People v. Turrin (2009) 176 Cal.App.4th 1200, 1205, italics added.) The clerk’s error in this case in failing to comply with the ministerial duty to enter the amount of the costs on the judgment “immediately” after the court ruled on the motion to tax costs was a clerical error because it was made in “recording the judgment.” Therefore, this error could be corrected “at any time.”
It is difficult to discern the precise basis for plaintiff’s jurisdictional complaint as she makes a string of seemingly unrelated assertions. First, plaintiff claims that “the one final judgment rule precluded the entry of the amended judgment” in this case. None of the cases she cites in support of her claim involved a court’s correction of a clerical error, so they are not on point. Plaintiff maintains that the trial court lacked jurisdiction to “amend or modify” the judgment after it had become final. Yet the trial court did not actually “amend or modify” the judgment; it merely corrected a clerical error in the judgment. A clerical error may be corrected at any time. Plaintiff argues that the trial court’s change to the judgment violated this court’s remittitur. However, because a clerical error may be corrected at any time, the scope of this court’s remittitur is irrelevant to the trial court’s jurisdiction to correct clerical error.
The trial court did not lack jurisdiction in June 2010 to order the judgment corrected to include the amount of the costs the trial court had awarded to defendant in December 2007 when it ruled on the motion to tax costs.
III. Disposition
The June 2010 corrected judgment is affirmed.
WE CONCUR: Elia, Acting P. J., Grover, J.
Judge of the Superior Court of Monterey County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.