David Burgess v. Casa De Cadillac, et al.

(Van Nuys Courthouse West: Dept. 107) August 21, 2026 DEPARTMENT 107 LAW AND MOTION RULINGS

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES NORTHWEST DISTRICT | David Burgess, Plaintiff. v. Casa De Cadillac, et al. Defendants. | Case Number Department 24VECV01863 107 | COURT'S [TENTATIVE] ORDER RE: Motion Relief from Order Denying Costs and for Leave to File Memorandum of Costs | [THE FOLLOWING IS A TENTATIVE RULING IN THE ABOVE CASE]: Grant

I. BACKGROUND

On May 9, 2018, Plaintiff David Burgess ("Plaintiff") entered into a warranty contract with Defendant General Motors LLC ("Defendant") regarding a 2018 Cadillac XT5 Crossover (the "Vehicle"). (Complaint P.P. 3, 28.) The Vehicle was defective. (Complaint P.P. 28-29.)

On April 23, 2024, Plaintiff filed a complaint against Defendant, Casa De Cadillac dba Casa Automotive Group, and Does 1 through 10, alleging causes of action for: (1) violation of Song-Beverly Act - breach of express warranty; (2) violation of Song-Beverly Act - breach of implied warranty; and (3) negligent repair.

On March 9, 2026, Plaintiff filed a notice of settlement of entire case.

On May 7, 2026, Plaintiff filed a motion for attorneys' fees (the "Attorneys' Fees Motion").

On July 21, 2026, the court granted the request for attorneys' fees in the reduced sum of $16,962.00 but denied the request for costs because Plaintiff had filed no memorandum of costs with the court (the "July 21 Order"). (07/21/26 Minute Order pp. 18-19.)

On July 29, 2026, Plaintiff filed a motion for relief from order denying costs and for leave to file memorandum of costs [Code Civ. Proc., Sec. 473(b); Cal. Rules of Court, rule 3.1700] (the "Motion").

On August 6, 2026, Defendant filed an opposition.

As of August 18, 2026, no reply had been filed.

II. LEGAL STANDARD

"The court may, upon any terms as may be just, relieve a party or the party's legal representative from a judgment, dismissal, order, or other proceeding taken against the party through the party's mistake, inadvertence, surprise, or excusable neglect."¿ (Code Civ. Proc., Sec. 473, subd. (b).)¿

Alternatively, "the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to the attorney's mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against the attorney's client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against the attorney's client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect."¿ (Id.)¿¿¿

An application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.¿ (Code Civ. Proc., Sec. 473, subd. (b).)

"When relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court." (Rappleyea v. Campbell ¿(1994) 8 Cal.4th 975, 981-82.)¿

III. DISCUSSION

Plaintiff moves for discretionary relief under Code of Civil Procedure section 473, subdivision (b) from the court's July 21 Order denying Plaintiff's request for costs. (Motion p. 2.)

Plaintiff seeks leave under California Rules of Court, rule 3,1700 to file and be deemed timely a memorandum of costs. (Motion p. 2.)

Plaintiff argues the failure to file a memorandum of costs was due to Plaintiff's counsel's excusable neglect. (Motion pp. 6-7.)

Plaintiff further argues that good cause exists to permit Plaintiff to file the memorandum of costs because the amount requested was disclosed by Plaintiff's Attorneys' Fees Motion, Plaintiff is entitled to recover costs as the prevailing party, and the Motion was promptly brought within ten days of the July 21 Order and before the six-month deadline set by Code of Civil Procedure section 473, subdivision (b). (Motion p. 7.)

Finally, Plaintiff argues Defendant will suffer no prejudice because the amount is the same as what was set forth in the Attorneys' Fees Motion and Defendant may file a motion to strike or tax costs. (Motion p. 7.)

In opposition, Defendant argues Plaintiff has not shown excusable neglect because a reasonably prudent attorney would double-check exhibits filed with the court. (Opposition pp. 4-5.)

Defendant further argues: Counsel's declaration does not explain (1) the nature of the "employee turnover" which caused the fee motion and all other exhibits to be filed except the Memorandum of Costs, (2) any steps taken to resolve this before the hearing, (3) why Counsel did not review GM's opposition where GM clearly pointed out that Counsel failed to file a Memorandum of Cost and the Court should deny costs on that basis, (4) why the issue was not addressed in Counsel's reply and (5) why Counsel only alerted to this issue at the issuance of the Court's order. (Opposition pp. 4-5.)

Defendant also questions why Plaintiff's counsel only learned of the issue when they reviewed the July 21 Order. (Opposition p. 5.6)

Defendant argues that had Plaintiff's counsel been diligent, they would have learned of the issue when Defendant filed its opposition and attached the memorandum of costs to the reply. (Motion pp. 5-6.)

The court shares Defendant's counsel's concern about when Plaintiff's counsel represents they learned of the error.

Plaintiff's counsel submits a declaration stating, in relevant part: "Neither I nor, to my knowledge, anyone else at Drake Law Firm discovered this oversight until the Court issued its Minute Order on July 21, 2026 . . ." (Yousef Declaration P. 5.)

Defendant stated in its opposition to the Attorneys' Fees Motion that "Counsel has neither filed a Memorandum of Costs nor provided evidence to support the claimed costs." (Attorneys' Fees Motion Opposition p. 15.)

Plaintiff quoted this exact sentence in its reply to Defendant's opposition to the Attorneys' Fees Motion. (Attorneys' Fees Motion Reply pp. 13-14.)

Plaintiff then stated: "[t]o the extent Defendant's counsel did not locate that filing, the appropriate remedy is not forfeiture of costs actually and reasonably incurred, but consideration of the Memorandum of Costs and its supporting documentation already before the Court." (Attorneys' Fees Motion Reply p. 14.)

Plaintiff's counsel submits a declaration with the present Motion stating: The failure to timely file the Memorandum of Costs was the result of inadvertent clerical and administrative error on the part of Drake Law Firm staff. It was not the result of any deliberate litigation strategy, and it was not the fault of, and is not attributable to, Plaintiff David Burgess, who had no involvement in, and no knowledge of, the preparation or filing of court documents in this matter. (Yousef Declaration P. 6.)

In the Motion, Plaintiff represents that the filing oversight was "due to employee turnover . . ." (Motion p. 5.)

Plaintiff's counsel's declaration mentions a clerical and administrative error but does not mention employee turnover as the reason the clerical and administrative error occurred.

Plaintiff cites Zamora v. Clayborn Contracting Group, Inc. (" Zamora ") (2002) 28 Cal.4th 249, 258. (Motion p. 7.)

In Zamora, a legal assistant mistakenly typed the word "against" instead of "in favor of" Pablo Zamora on a section 998 offer. (Id. at pp. 252-253.)

The Supreme Court of California noted that "the discretionary relief provision of section 473 only permits relief from attorney error 'fairly imputable to the client, i.e., mistakes anyone could have made.' [Citation.] 'Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice." (Id. at p. 258.)

The Court held: [T]he trial court reasonably concluded that the mistake made by Zamora's counsel was excusable. The erroneous substitution of the word "against" for the phrase "in favor of" is a clerical or ministerial mistake that could have been made by anybody. While counsel's failure to review the document before sending it out was imprudent, we cannot say that his imprudence rendered the mistake inexcusable under the circumstances. (Id. at p. 259.)

The Court cited other circumstances where courts have set aside judgments, such as when an attorney mistakenly checked the "with prejudice" box instead of the "without prejudice" box, an associate misinterpreted a lead attorney's instructions and gave incorrect information at a hearing, and where an attorney's secretary lost an answer to be filed. (Id.)

The court concludes the cited mistake here, Plaintiff's counsel's staff's mistakenly failing to file the memorandum of costs, is analogous to the mistake in Zamora, where the legal assistant mistakenly typed "against" instead of "in favor of." (Yousef Declaration P. 6.)

Further, California Rules of Court, rule 3.1700(a) states: A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service 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.

Here, there has been no entry of judgment or dismissal by the clerk.

Defendant has not shown it will suffer prejudice if the court grants the Motion.

IV. CONCLUSION

For the foregoing reasons, the Motion is granted.

Plaintiff is directed to file the memorandum of costs within ten (10) days of this order.

Defendant may file a