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Fatal Error in Judicial Council Cost Memorandum Form, Says Dissenting Justice

Tim Kowal     August 22, 2022

Just won a lawsuit? Before you file your memo of costs, read the dissent in Srabian v. Triangle Truck Center (D5 Aug. 12, 2022 No. F080066) (nonpub. opn.). The upshot: A memo of costs needs to be signed under penalty of perjury. It is an evidentiary showing, after all.

In this, the Judicial Council form MC-010 for the memo of costs has been letting us all down. The memo of costs is required to be “verified,” and that means signed under penalty of perjury. But the form doesn’t have that language. So if you use it, expect your opponent may deploy Justice Kathleen Meehan’s sound reasoning in her dissent.

The majority held the memo of costs, though lacking a signature under penalty of perjury, substantially complied with the rules and caused no prejudice.

The majority acknowledged that, under California Rules of Court rule 3.1700(a), a memorandum of costs "must be verified….” And here, the memo of costs, using Judicial Council form MC-010, was not signed under penalty of perjury (because the form does not have that language). And it did not attach any exhibits supporting the claimed costs.

But the majority concluded that the way the rules define “verified” leaves some doubt whether it necessarily means signed under penalty of perjury. And a lay definition does not include such a requirement.

Besides, the majority goes on, the signed memo of costs, though not signed under penalty of perjury, substantially complied with the rules, and did not prejudice the opposing party.

Dissenting, Justice Meehan would hold “verified” is a term of legal art that means signed under penalty of perjury.

Justice Meehan dissented. She disagreed with using a lay understanding of the word “verified.” Although words or phrases in a statute should be given their usual and ordinary dictionary meaning (In re Friend (2021) 11 Cal.5th 720, 730), Justice Meehan noted that “this canon of construction yields to a technical-meaning exception when words have acquired a peculiar meaning in the law (ibid.; accord, Brown v. Superior Court (2016) 63 Cal.4th 335, 351; see Civ. Code, § 13 [words and phrases are to be construed according to "approved usage," but "such others as may have acquired a peculiar and appropriate meaning in law ... are to be construed according to such peculiar and appropriate meaning"]; accord, Code Civ. Proc., § 16).”

Here, the word “verified,” explains Justice Meehan, “has a specific and long-standing meaning, although it is not defined by statute. In multiple statutory contexts, including historically for a memorandum of costs, verified or verification refers to a sworn statement or one that is certified under penalty of perjury.” Demonstrating this point, Justice Meehan plumbed the civil procedure statutes dating back to 1873, and through the legislative overhaul in 1986. Her conclusion: the requirement of a “verified” cost memorandum always meant either using a sworn oath-and-affidavit procedure, or signed under penalty of perjury.

Justice Meehan also noted that the Judicial Council did get it right in its form for costs after appeal. Form APP-013 includes a penalty-of-perjury recital.

Without a signature under penalty of perjury, Justice Meehan concludes, a cost memorandum is a hearsay document, insufficient to shift the burden of proof to the opposing party.

Justice Meehan underscores the importance of the penalty-of-perjury requirement by referencing the fact that the memo of costs here contained a number of obvious inaccuracies, and yet the trial court awarded the exact amount stated on the memo. Thus, the defect did prejudice the appellant. As Justice Meehan concludes:

“[T]his is exactly why the sworn nature of the cost memorandum is important—it reminds all claimants and their attorneys of the need for accuracy and the grave responsibility they have with respect to the truth and correctness of the costs being sought.” (Citing Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 609 [declarations under penalty of perjury ensure witness understands grave responsibility assumed with respect to the truth].)

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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