Thrifty Payless v. Mariners Mile Gateway CA4/3

Filed 1/12/15 Thrifty Payless v. Mariners Mile Gateway CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THRIFTY PAYLESS, INC.,

Plaintiff and Respondent, G049333

v. (Super. Ct. No. 06CC11888)

MARINERS MILE GATEWAY, LLC et OPINION al.,

Defendants and Appellants.

Appeal from an order of the Superior Court of Orange County, David T. McEachen, Judge. Affirmed. Burkhalter Kessler Clement & George, Daniel J. Kessler and Michael Oberbeck for Defendants and Appellants. Lurie, Zepeda, Schmalz & Hogan, Wayne C. Arnold and Shawn M. Ogle for Plaintiff and Respondent. * * *

This is an appeal from a costs award in favor of respondent Thrifty Payless, Inc., doing business as Rite Aid (Rite Aid). Appellant Mariners Mile Gateway, LLC (Mariners) argues Rite Aid is not entitled to costs because the memorandum of costs was untimely filed. We find the memorandum was timely filed and therefore affirm the cost award. I FACTS The underlying facts of this case are discussed in the first appeal of this matter, Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, and the motion that was the basis for Rite Aid’s costs memorandum is discussed at length in the second appeal, filed concurrently with this opinion. (Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (Jan. 12, 2015, G048531) [nonpub. opn.].) In that motion, the court denied Mariners’s request to recover on a $5 million preliminary injunction bond that had been posted by Rite Aid. The court issued a document entitled “Statement of Decision and [Judgment]” in favor of Rite Aid on April 4, 2013. That document was accompanied by a clerk’s certificate of service by mail, which was also dated April 4. In its entirety, that document read: “I certify that I am not a party to this cause. I certify that a true copy of STATEMENT OF DECISION AND [JUDGMENT] was mailed following standard court practices in a sealed envelope with postage fully prepaid, addressed as indicated below. The mailing and this certification occurred at Santa Ana, California, on 04/04/2013.” No other notice of judgment or notice of entry of judgment appears in the record. On May 29, Rite Aid submitted a proposed judgment seeking to clarify that Mariners’s action and motion were both dismissed with prejudice, and the bond was exonerated. Mariners objected on June 10, arguing judgment had already been entered. The trial court sent notice it declined to sign the proposed order on June 21. Rite Aid