Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. GIC829872, Charles R. Hayes, Judge.
McINTYRE, J.
After successfully obtaining an appellate reversal of a judgment against it in this action, Hyundai Motor America (Hyundai) filed a memorandum of costs seeking to recover its costs at trial (the trial cost bill). The superior court rejected the trial cost bill twice, the first time because the proof of service relating thereto failed to specify the date on which the trial cost bill was served by mail and the second time because it included an "improper ex parte application," and subsequently denied Hyundai's request to have the trial cost bill accepted, nunc pro tunc, or alternatively, for leave to file the trial cost bill late under Code of Civil Procedure section 473. (All further statutory references are to the Code of Civil Procedure except as otherwise noted.)
Hyundai challenges the court's denial of its motion, contending alternatively that the court erred in rejecting the trial cost bill on either or both the occasions when the filing would have been timely or that the court erred in denying its subsequent request for leave to file it late. We agree that the court erred in rejecting the trial cost bill both times when the trial cost bill was timely submitted and thus reverse and remand with directions to the superior court.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2002, Walter Figiel purchased a new 2003 Hyundai Santa Fe, but after repeatedly taking the car in for service as a result of an unusual noise that he believed was related to the transmission without any resolution of the problem, he filed this action against Hyundai under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.). (Figiel v. Hyundai Motor America (Aug. 22, 2006, D047260) [nonpub. opn.] pp. 1-6.) At trial, a jury awarded Figiel $19,694.69 in compensatory damages and $7,877.87 as a civil penalty after finding that the car's defect substantially impaired its use, value or safety, that Hyundai was unable to fix the car to conform to the applicable warranty after a reasonable number of attempts and that Hyundai wrongfully failed to repurchase the car. (Id. at pp. 6-7.)
Hyundai thereafter moved for judgment notwithstanding the verdict and for a new trial on several grounds, including that the verdict was not supported by the evidence. (Figiel v. Hyundai Motor America, supra, at p. 7.) It appealed from the trial court's denial of the motions and, in an unpublished opinion, this court concluded that there was no substantial evidence in the record to support the jury's finding that the defect substantially impaired the use, safety or value of the car. (Id. at pp. 8-11.) We reversed the judgment, remanded the matter with directions to the trial court to enter a new judgment in Hyundai's favor and awarded Hyundai its costs on appeal. (Id. at p. 11.)
After issuance of the remittitur, the superior court entered a new judgment in Hyundai's favor on December 11. Hyundai filed the trial cost bill on December 21, although the superior court later "canceled" the file stamp thereon because the related proof of service failed to set forth the date on which service by mail was effected on Figiel. (Hyundai filed a separate memorandum of costs for its costs on the appeal, but that filing is not at issue herein.)
Hyundai submitted its trial cost bill for filing again on December 27, accompanied by a "cover page" noting the rejection of the prior filing and objecting thereto and that it "understands that the Clerk will accept the resubmitted Memorandum of Costs with an Amended Proof of Mailing and will file it nunc pro tunc as of December 21, 2006." On January 4, 2007, the court again rejected Hyundai's filing, this time on the ground that the filing constituted an "improper ex parte application" in violation of California Rules of Court, rule 3.1200 et seq.
Hyundai scheduled an ex parte hearing in late January 2007, seeking to have the superior court deem its trial cost bill to have been filed no later than December 27 or, alternatively, for an order granting relief to file the trial cost bill late pursuant to section 473. The court set the ex parte request for hearing as a noticed motion, which it ultimately denied. Hyundai appeals.
DISCUSSION
The right to recover costs is wholly dependent on statute and pursuant to section 1032, subdivision (b), "a prevailing party is entitled as a matter of right to recover costs in any action or proceeding," unless a statute expressly provides otherwise. (Crib Retaining Walls, Inc. v. NBS/Lowry, Inc. (1996) 47 Cal.App.4th 886, 889; see also § 1033.5 [itemization of recoverable costs].) Rule 3.1700(a)(1) of the California Rules of Court requires a prevailing party who is claiming costs to "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 . . . 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."
A court clerk is required to endorse each paper filed with the court with the day, month and year that the paper is filed. (Gov. Code, § 69846.5.) Provided that the document is in a form that complies with applicable statutes and rules, the clerk has a ministerial duty to file it. (Carlson v. Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1276.) A clerk's improper rejection of a document based on the existence of technical defects does not invalidate the filing, which occurs when the paper is delivered, during office hours, to the clerk's office. (United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 918 [although the clerk improperly rejected a petition for review of an administrative decision for various defects, the petition was nonetheless legally "filed" at the time it was presented to the clerk]; Cal. Rules of Court, rule 1.20; see also Mentzer v. Hardoin (1994) 28 Cal.App.4th 1365, 1372; Hoyt v. Stark (1901) 134 Cal. 178, 179-182.)
Section 1013a provides that service by mail may be proved by an affidavit setting forth "the date and place of business where the correspondence was placed for deposit in the United States Postal Service," and "that the envelope was sealed and placed for collection and mailing on that date following ordinary business practices." (§ 1013a, subd. (3)(F), (G); see also § 1013, subd. (b).) There is some disagreement in the law, however, as to whether strict compliance with the proof of service requirements of section 1013a is required. (Compare Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437, 443-444 [holding that substantial compliance is sufficient]; Glasser v. Glasser (1998) 64 Cal.App.4th 1004, 1010 [same]; Douglas v. Janis (1974) 43 Cal.App.3d 931, 937 [same]; compare Silver v. McNamee (1999) 69 Cal.App.4th 269, 279, & cases cited therein [requiring strict compliance].)
We conclude that a proof of service certifying that the document was served by mail in a specific month and year, but omitting the exact day on which service was effected, constitutes substantial compliance with the requirements of section 1013a and that that substantial compliance was sufficient to trigger the clerk's obligation to file the trial cost bill submitted to the court on December 20. Accordingly, it was improper for the court clerk to cancel the file stamp on the trial cost bill that Hyundai presented on that date.
Even if strict compliance with section 1013a was required, however, we would in any event conclude that the court erred in striking the file stamp on the trial cost bill Hyundai delivered to the court on December 27. That trial cost bill was complete on its face and undisputedly complied with the applicable requirements of sections 1013a and 1013, subdivision (b). Accordingly, the clerk had a ministerial duty to file it in (Carlson v. Department of Fish & Game, supra, 68 Cal.App.4th at p. 1276) and the clerk's subsequent cancellation of the file stamp was ineffective to invalidate the filing of the trial cost bill on that date. (United Farm Workers of America v. Agricultural Labor Relations Bd., supra, 37 Cal.3d at p. 918.)
For the foregoing reasons, we reverse the order of the trial court. To preserve Figiel's right to challenge some or all of the costs requested therein, however, we direct the superior court to file stamp the trial cost bill anew on remand and to conduct whatever further proceedings might be necessary in that regard.
DISPOSITION
The order is reversed and the matter is remanded with directions to the superior court to (1) file forthwith the trial cost bill, as in the form delivered to it on December 27, (2) give immediate notice to the parties of the date of such filing, and (3) conduct further proceedings, if any, relating to the propriety of the costs claimed therein. Hyundai is entitled to recover its costs on appeal.
WE CONCUR: McDONALD, Acting P. J., O'ROURKE, J.