Torres-Medina v. San Luis Bay Inn Timeshare Associated CA2/6

Filed 6/22/15 Torres-Medina v. San Luis Bay Inn Timeshare Associated CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

JANET TORRES-MEDINA, 2d Civil No. B256983 (Super. Ct. No. CV110122) Plaintiff and Appellant, (San Luis Obispo County)

v.

SAN LUIS BAY INN TIMESHARE ASSOCIATED, INCORPORATED,

Defendant and Respondent.

Janet Torres-Medina appeals from an order denying her motion (1) to vacate an amended judgment awarding costs to respondent San Luis Bay Inn Timeshare Association, Incorporated; and (2) to tax the costs claimed by respondent in its memorandum of costs filed before entry of the amended judgment. We conclude that, because the motion to vacate was not timely filed, the trial court did not have jurisdiction to grant the motion. Accordingly, we affirm. Background In 2011 appellant filed a personal injury action against respondent. She allegedly slipped and fell while walking on a wet tile deck at respondent's premises. After a jury trial, a special verdict was returned in favor of respondent. We affirmed the judgment in an unpublished opinion. (Torres-Medina v. San Luis Bay Inn Timeshare Assoc. (July 14, 2014) B251373.)

Appellant rejected respondent's $80,000 pretrial offer to compromise pursuant to Code of Civil Procedure section 998.1 On the same day that judgment was entered in respondent's favor, respondent filed a memorandum of costs (memorandum) seeking $55,286.75. A proof of service shows that, on August 8, 2013, respondent mailed the memorandum to appellant's counsel. Appellant did not file opposition to the memorandum. On September 17, 2013, the trial court entered an amended judgment ordering appellant to pay costs of $55,286.75. On September 20, 2013, respondent served appellant by mail with notice of entry of the amended judgment. On September 30, 2013, respondent's counsel mailed and faxed a letter to appellant's counsel requesting that appellant "pay the amended judgment now and provide a check to our office in the amount of $55,286.75." (Bold omitted.) On October 15, 2013, appellant filed a motion to vacate the amended judgment and to tax costs claimed by respondent in the memorandum. The motion to vacate stated that it was "in accordance with California Code of Civil Procedure Section 663." (Italics omitted.) In support of the motion, appellant's counsel's clerical staff declared that they had no recollection of having received the memorandum mailed by respondent on August 8, 2013. Loren Meador, an associate attorney, declared that before September 30, 2013, she had not seen the memorandum and it had not been "inadvertently placed into any of [her] files." On September 30 respondent's counsel emailed a copy of the memorandum to appellant's counsel. The email stated that the memorandum had been "properly served on your office on August 8, 2013." At the hearing on the motion to vacate, appellant's lead attorney, J. Scott Ferris, stated: "We did not receive it [the memorandum]. That's why we did not provide a response to it. When we were finally aware of the existence of such a document, that's when we filed all of the documents on [sic, with] the court." The trial court denied the motion to vacate the amended judgment. It concluded that appellant's "denial [of receipt of the memorandum] and supporting evidence is not 1 Unless otherwise stated, all statutory references are to the Code of Civil Procedure. 2