NEWest Construction Co. v. City of Carlsbad CA4/1

Filed 8/28/24 NEWest Construction Co. v. City of Carlsbad CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

NEWEST CONSTRUCTION D083799, D083939 COMPANY, INC.,

Plaintiff and Appellant, (Super. Ct. No. 37-2020- 00046237-CU-BC-NC) v.

CITY OF CARLSBAD,

Defendant and Respondent.

CONSOLIDATED APPEALS from an order and judgment of the Superior Court of San Diego County, Robert Dahlquist, Judge. Affirmed. Monteleone & McCrory, Patrick J. Duffy, and Martha Eager for Plaintiff and Appellant. Procopio, Cory, Hargreaves & Savitch, Laurence R. Phillips, and Mike Nolan for Defendant and Respondent. MEMORANDUM OPINION NEWest Construction Company, Inc. (NEWest) appeals from an order and judgment awarding costs and expert witness fees to the City of Carlsbad (City). We find no error and affirm.

The underlying dispute relates to a public works construction contract between the City and NEWest. After NEWest sued the City in 2021, the City filed an answer with affirmative defenses, including one for offset. (See Code

Civ. Proc., § 431.70.)1 In 2022, the City made a section 998 offer to resolve the dispute for $200,000. NEWest did not accept or respond to the City’s offer. After a jury trial in 2023, the jury returned a verdict in NEWest’s favor in the amount of $279,821.34, but awarded an offset to the City in the amount of $230,378.00, for a net recovery to NEWest of $49,443.34— considerably less than the City’s $200,000 section 998 offer. Before entry of judgment, the City filed a memorandum of costs seeking costs and expert witness fees under section 998. NEWest filed a motion to strike or tax the costs and an addendum with additional arguments. The City opposed the motion. After a hearing, the court awarded costs and section 998 expert witness fees to the City totaling $393,109.40. It then entered judgment for the City. NEWest appealed both the costs order and judgment, and we have consolidated the two appeals. NEWest challenges the costs award on six grounds. We find none to be persuasive. First, NEWest contends that the City’s memorandum of costs was premature because no judgment had been entered yet. But “the premature filing of a memorandum of costs is treated as ‘a mere irregularity at best’ that does not constitute reversible error absent a showing of prejudice. [Citations.] Rather, courts treat prematurely filed cost bills as being timely filed.” (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863,