Filed 1/19/22 Tom v. Live Nation Entertainment CA2/7

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

TERRY TOM et al.,

Plaintiffs and Appellants,

v.

LIVE NATION 

ENTERTAINMENT, INC. et al.,

Defendants and Respondents.

 B308200

 (Los Angeles County

 Super. Ct. No. BC665696)

APPEAL from an order of the Superior Court of 

Los Angeles County, H. Jay Ford III, Judge. Affirmed.

Minami Tamaki, B. Mark Fong and Seema Bhatt; 

Emergent and Seth I. Rosenberg for Plaintiffs and Appellants.

Bremer Whyte Brown & O’Meara, Alexander Giannetto 

and John Paul Salem for Defendants and Respondents.

__________________________
2

The 24-year-old son of Terry and Gayline Tom died after 

ingesting ecstasy at a dance music festival. The Toms brought an 

action against Insomniac Holdings, LLC, the event organizer, as 

well as its two parent companies, Live Nation Entertainment, 

Inc. and Live Nation Worldwide, Inc. (collectively, Live Nation 

defendants), for failure to provide the Toms’ son with adequate 

medical care. However, after receiving the trial court’s tentative 

ruling to grant the Live Nation defendants’ summary judgment 

motion, the Toms voluntarily dismissed the Live Nation 

defendants.

The Live Nation defendants filed a memorandum of costs 

seeking $42,023 in costs, including expert witness fees pursuant 

to Code of Civil Procedure section 998.

1 The Toms failed to file a 

motion to tax costs within 15 days as required by California 

Rules of Court, rule 3.1700(b)(1) (rule 3.1700). Almost six 

months later the Toms filed a motion under section 473,

subdivision (b), seeking leave to file a motion to tax costs. 

Claiming excusable attorney error, the Toms argued the law is 

unsettled as to whether, upon a voluntary dismissal of a 

defendant, service of a proposed judgment of dismissal is 

required before the defendant can file a memorandum of costs. 

The trial court denied the motion and entered judgment for the 

Live Nation defendants, awarding the requested costs.

On appeal, the Toms contend the trial court abused its 

discretion in denying their motion for relief under section 473, 

subdivision (b), because their attorney reasonably believed based 

1 All statutory references are to the Code of Civil Procedure

unless otherwise indicated.
3

on a conflict in the law that the Live Nation defendants had 

prematurely filed their memorandum of costs without serving a 

proposed judgment of dismissal. We find no conflict in the law 

supporting the Toms’ claim of excusable neglect and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Toms’ Lawsuit and Dismissal of the Live Nation 

Defendants 

In 2015 the Toms’ son, Nicholas, died after ingesting 

ecstasy while attending the Electric Daisy Carnival, a dance 

music festival organized and held by Insomniac in Las Vegas, 

Nevada. On June 20, 2017 the Toms filed a lawsuit against 

Insomniac and the Live Nation defendants for negligence, 

premises liability, intentional misrepresentation, negligent 

misrepresentation, nuisance, wrongful death, and survival. The 

complaint alleged the music festival was overcrowded and 

understaffed, causing a delay in the provision of emergency 

medical services to Nicholas, resulting in his death.

In May 2018 the Live Nation defendants sent section 998 

offers to compromise to the Toms proposing dismissal of the 

Toms’ lawsuit in exchange for a waiver of the Live Nation 

defendants’ attorneys’ fees and costs. The Toms failed to respond

to the offers. On August 30, 2019 the trial court held a hearing 

on the motion for summary judgment filed by Insomniac and the 

Live Nation defendants. Prior to the hearing, the court issued a 

tentative ruling to grant the motion as to the Live Nation 

defendants on the basis the concert was “run solely by Defendant 

Insomniac Holdings, LLC and neither Live Nation defendant was 

involved in the event.” At the hearing, the Toms agreed to 
4

dismiss the Live Nation defendants. On September 4, 2019 the 

Toms filed a notice of ruling stating that “Plaintiffs will file a 

dismissal of Defendants Live Nation Worldwide, Inc. and Live 

Nation Entertainment, Inc. instead of summary judgment being 

granted as to them.” On September 4 the Toms filed a request 

for dismissal with prejudice of their complaint as to the Live 

Nation defendants. The court clerk entered the dismissal the

same day and gave notice to counsel the following day.

B. The Live Nation Defendants’ Memorandum of Costs

On September 18, 2019 the Live Nation defendants filed 

and served a memorandum of costs seeking $42,023 in costs, 

including $15,070 in expert witness fees, $6,707 for filing and 

motion fees, $3,519 in deposition costs, $5,735 for service of 

process, $250 for court reporter fees, and $10,742 for travel and 

other costs.

On September 24 the Toms’ attorney, Seema Bhatt, sent a 

letter to counsel for the Live Nation defendants, asserting the 

Live Nation defendants were not entitled to the costs they 

incurred jointly with Insomniac. Bhatt stated, “[W]e do not 

believe that Live Nation has a viable claim for any costs in this 

matter. Live Nation was represented by the same counsel as 

Insomniac and there were no separate costs attributable to Live 

Nation. Where codefendants are represented by the same 

counsel, a dismissed defendant can recover only costs incurred on 

its behalf. Costs jointly incurred with codefendants who remain 

in the case (e.g., deposition costs) are not recoverable by the 

dismissed defendant.”

On January 28, 2020 the Live Nation defendants requested 

entry of a clerk’s judgment for $42,023, attaching their
5

memorandum of costs. (See rule 3.1700(b)(4) [“After the time has 

passed for a motion to strike or tax costs or for determination of 

that motion, the clerk must immediately enter the costs on the 

judgment.”].) The clerk rejected the request, stating on its notice 

of rejection form, “Request for Entry of Default form is 

incomplete. Attachment is not needed for a default.” On 

January 30, 2020 the Live Nation defendants again requested 

entry of a clerk’s judgment, which the clerk also rejected, stating, 

“Request for Default is incomplete.”

C. The Toms’ Motion for Leave To File Motion To Tax Costs

On March 16, 2020, in response to the Live Nation 

defendants’ requests for entry of a clerk’s judgment on their costs,

the Toms filed a motion under section 473, subdivision (b), 

seeking leave to file a late motion to tax costs. The Toms 

asserted they had not filed a motion to tax costs earlier because 

they believed a memorandum of costs could not be filed until a 

judgment of dismissal was entered and “they believed 

[d]efendants had no reasonable basis for their [m]emorandum of 

[c]osts and, therefore, such costs were improper.” Bhatt stated in 

her declaration in support of the motion, “Believing a [j]udgment 

of [d]ismissal or [n]otice of [e]ntry of [d]ismissal was required for 

voluntary dismissals before costs may be awarded, plaintiffs did 

not move to tax the Live Nation defendants’ memorandum of 

costs.” She added, “Instead, on September 24, 2019, plaintiffs 

informed the Live Nation defendants in writing that they were 

not entitled to the costs in the memorandum because the costs 

defendants sought were jointly incurred with co-defendants who 

remain in the case.”
6

The Toms argued in their motion that they believed “that 

where there is a voluntary dismissal—as opposed to a 

judgment—an entry of judgment of dismissal is required before 

costs may be awarded.” The Toms cited as authority for this 

proposition the holdings in Boonyarit v. Payless Shoesource, Inc. 

(2006) 145 Cal.App.4th 1188 (Boonyarit) and Sanabria v. Embrey

(2001) 92 Cal.App.4th 422 (Sanabria). But they acknowledged 

that, “[u]pon further research, there are conflicting cases that 

suggest costs may be recovered after a voluntary dismissal 

without the need for a judgment.” The Toms argued their 

attorneys’ “‘honest mistake of law is a valid ground for relief 

when the legal problem posed “is complex and debatable.”’” 

(Citing State Farm Fire & Casualty Co. v. Pietak (2001) 

90 Cal.App.4th 600, 611.) Alternatively, the Toms argued they 

should be granted leave to file their motion to tax costs because 

the memorandum of costs contained costs that were not 

recoverable as a matter of law, and the Live Nation defendants 

would not be prejudiced by the late filing. The Toms submitted a

proposed motion to tax costs.

The Live Nation defendants argued in opposition that the 

Toms’ failure to file a motion to tax costs was “intentional and 

strategic,” not a mistake or excusable neglect. They noted the 

Toms’ September 24, 2019 letter argued why the Live Nation 

defendants did not have a viable claim for costs, not that the

Toms believed the memorandum of costs was filed prematurely 

because a judgment of dismissal had not been filed. Further, the 

deadline for filing a motion to strike or tax costs “is not a complex 

or debatable issue,” and the Live Nation defendants would be 

prejudiced by the filing of a motion to tax costs over six months 
7

after they had been dismissed from the case and after a year and 

a half of litigation.

At the July 16, 2020 hearing, the trial court issued its 

tentative ruling to deny the motion, explaining, “Plaintiffs’ 

counsel’s mistake of law was unreasonable, as the issue was 

neither complex nor unsettled. . . . [Counsel’s] declaration also 

provides no explanation for how she arrived at the erroneous 

conclusions that (1) the Court’s ability to award costs to 

dismissed [d]efendants was contingent on entry of a judgment of 

dismissal or [n]otice of [e]ntry of [d]ismissal; (2) the deadline 

under . . . [r]ule 3.1700(b)(1) could not be triggered until a 

judgment of dismissal or notice of entry of dismissal was entered; 

and (3) [p]laintiff’s obligation to file [a] motion to strike or tax 

costs within the timeframe . . . was affected by the Court’s ability 

to award costs.”

Bhatt argued in response that the “law in this area is a 

little complex,” and she made an “honest mistake of law,” relying 

on the Weil & Brown, California Practice Guide: Civil Procedure 

Before Trial (The Rutter Group 2019) (practice guide) and the 

cases cited in the guide. Bhatt pointed out that the practice 

guide states that the question of when a memorandum of costs 

may be filed following a voluntary dismissal is unclear, and it 

encourages defense counsel to obtain a formal judgment of 

dismissal following a voluntary dismissal to ensure its 

entitlement to costs. Bhatt acknowledged she should have 

“researched further,” “asked around,” or “file[d] a motion to tax 

out of abundance [of] caution,” but she argued relief was still 

warranted based on her mistake of law because she was a 

“relatively young lawyer,” had “never filed a motion to tax 

before,” and had “never received a memorandum of costs before.”
8

The trial court continued the hearing until August 13, 2020 

to consider the authority cited by Bhatt and to allow the Live 

Nation defendants to submit a declaration setting forth the 

attorneys’ fees and costs they had incurred in opposing the Toms’ 

motion.2 At the continued hearing, the court adopted its

tentative ruling denying the motion. The court added, “The 

authorities cited by [the Toms’] [c]ounsel regarding the claimed 

ambiguity of when a memorandum of costs must be filed after a 

request for dismissal is filed do not explain why [c]ounsel’s failure 

to timely file a motion to tax those costs was an excusable 

mistake. Even if counsel believed the filing of the memorandum 

of costs was premature because a judgment of dismissal had not 

been entered, it was not excusable for counsel to simply ignore 

the clear deadline to file the motion to tax costs . . . . Moreover, 

counsel’s reliance on that mistaken belief is belied by counsel’s 

testimony about her conversation with opposing counsel shortly 

after the memorandum of costs was filed. Oddly, in that 

conversation counsel did not claim the memorandum of costs was 

filed prematurely or that costs cannot be awarded until a 

judgment of dismissal is entered. Instead, counsel just argued 

the merits of the costs with opposing counsel.”3 The court 

2 Bhatt stated at the hearing the Toms would pay the 

reasonable attorneys’ fees and costs incurred by the Live Nation 

defendants in opposing the motion if the court granted the Toms 

leave to file their motion to tax costs. The Live Nation 

defendants later submitted a declaration showing they had 

incurred over $11,000 in fees and costs.

3 The trial court’s reference to Bhatt’s earlier “conversation” 

appears to be to Bhatt’s September 24, 2019 letter to opposing 

counsel.
9

rejected Bhatt’s argument that the absence of prejudice alone 

supported granting the motion, explaining it had considered that 

factor, but “given the clear absence of any excusable neglect the 

Court finds relief is not justified under [section] 473, subdivision 

(b).”

On August 21, 2000 the trial court entered a judgment for 

the Live Nation defendants, awarding $42,023 in costs. The 

Toms timely appealed.

DISCUSSION

A. The Live Nation Defendants Did Not File Their

Memorandum of Costs Prematurely

The Toms contend that under rule 3.1700(a)(1), the Live 

Nation defendants were not authorized to file a memorandum of 

costs until they submitted a judgment of dismissal, and thus the

Toms’ motion to tax costs was timely. The Toms misread 

rule 3.1700 and the applicable case law.

Pursuant to section 1032, subdivision (b), “a prevailing 

party is entitled as a matter of right to recover costs in any action 

or proceeding.” A defendant who has been voluntarily dismissed 

is a prevailing party. (§ 1032, subd. (a)(4) [“‘[p]revailing party”’ 

includes “a defendant in whose favor a dismissal is entered”]; see 

Santisas v. Goodin (1998) 17 Cal.4th 599, 606 [“Because plaintiffs 

voluntarily dismissed this action with prejudice, the seller 

defendants are defendants in whose favor a dismissal has been 

entered. Accordingly, they are ‘prevailing parties’ within the 

meaning of Code of Civil Procedure section 1032, subdivision (b), 

and are ‘entitled as a matter of right to recover costs’ unless 

another statute expressly provides otherwise.”].)
10

To recover statutory costs, the prevailing party must timely 

file a memorandum of costs pursuant to rule 3.1700(a)(1). 

Rule 3.1700(a)(1) requires the memorandum of costs be filed and 

served “within 15 days after the date of service of the notice of 

entry of judgment or dismissal by the clerk under Code of Civil 

Procedure 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.” Although the deadlines for filing a 

memorandum of costs are not jurisdictional, they are mandatory.

(Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 

223 Cal.App.3d 924, 929.) “Any notice of motion to strike or to 

tax costs must be served and filed 15 days after service of the cost 

memorandum.” (Rule 3.1700(b)(1).)

It is undisputed the court clerk entered the dismissal of the 

Live Nation defendants on September 4, 2019. Further, the 

request for dismissal provides as to notice by the clerk, 

“Attorney . . . notified on . . . 09/05/2019.” The Live Nation 

defendants filed and served their memorandum of costs 13 days 

after the clerk gave notice of entry of dismissal, on September 18, 

2019.4

The Toms’ reliance on Boonyarit, supra, 145 Cal.App.4th 

1188 is misplaced. There, the plaintiff sued multiple defendants, 

including Payless Shoesource for personal injuries she suffered 

when she slipped in a shopping center parking lot. (Id. at 

4 The record does not contain a proof of service of the entry of 

dismissal, but the Toms contend in their opening brief only that 

the filing of the memorandum of costs was premature because no 

judgment was entered, not that there was no written notice of 

entry of dismissal. We discuss notice of the entry of dismissal 

below.
11

p. 1190.) In her amended complaint, the plaintiff deleted six of 

the previously named defendants, including Payless, and she 

filed a request for dismissal of the six defendants. The court 

clerk rejected the request for dismissal because of a defect in the 

form, and a dismissal was never entered. Payless still filed a 

memorandum of costs as a prevailing party and was awarded 

costs. (Id. at p. 1191.) On appeal, the plaintiff contended Payless 

should not have been awarded costs because no judgment or 

dismissal had been entered. (Ibid.) The Court of Appeal agreed, 

explaining “Payless never obtained an order of dismissal” and it 

therefore “failed to perfect its statutory right to costs as a 

prevailing party under section 1032.” (Id. at p. 1193.)

In contrast to Boonyarit, it is undisputed that the court 

clerk entered a dismissal of the Live Nation defendants. Fries v. 

Rite Aid Corp. (2009) 173 Cal.App.4th 182 (Fries) is directly on 

point. There, the plaintiff filed a request for dismissal of the 

entire action without prejudice, which was entered by the clerk. 

The defendants filed memoranda of costs, and the plaintiff moved 

to strike or tax costs, arguing the memoranda of costs were 

procedurally defective because defendants failed to file proposed 

judgments or orders of dismissal at the time they filed their

memoranda. (Id. at p. 184.) The Court of Appeal rejected this 

argument, explaining, “Defendants complied with rule 3.1700 

when they filed memoranda of costs within 15 days after the date 

the notice of entry of dismissal was served. The question is 

whether, as [plaintiff] maintains, defendants were also required 

to file a proposed judgment along with their memoranda of costs, 

even though rule 3.1700 does not provide that they must do so. 

Neither the cases nor the practice guide Fries cites to support her 

position are persuasive.” (Fries, at p. 185.) The Fries court
12

observed, “[I]n this case, unlike in Boonyarit, a dismissal was

entered. Boonyarit, therefore, is inapposite.” (Fries, at p. 186.)

The plaintiff in Fries, like the Toms, relied on the language 

in the practice guide, which noted that because rule 3.1700(a)(1) 

referred to section 664.5 (addressing notices of entry of judgment 

after involuntary dismissals), “‘the mechanics for obtaining a 

judgment or order awarding costs after a voluntary dismissal are 

not clear.’” (Fries, supra, 173 Cal.App.4th at p. 187, citing Weil & 

Brown, Cal. Practice Guide: Civil Procedure Before Trial (The 

Rutter Group 2008) ¶¶ 11:38 to 11:38.2, pp. 11-22 to 11-23.)5 The 

Fries court examined the discussion in the practice guide and 

concluded the plaintiff’s “reliance on this commentary is not 

persuasive” because it ignored the second of three deadlines set 

forth in rule 3.1700(a)(1), which provides for the filing of a 

memorandum of costs within 15 days after “‘the date of service of 

written notice of entry of judgment or dismissal.’” (Fries, at 

p. 187.) As the Fries court pointed out, this deadline clearly 

applied to voluntary dismissals. (Ibid.)

The Toms’ reliance on dictum in Sanabria, supra, 

92 Cal.App.4th 422 fares no better. The Court of Appeal in 

Sanabria concluded that the defendant’s memorandum of costs 

was untimely because it was filed more than 15 days after notice 

of entry of dismissal. (Id. at p. 426.) The court noted in a 

footnote, citing to the practice guide, “Apparently, the 

memorandum of costs must be filed together with a proposed 

judgment of dismissal.” (Id. at p. 426, fn. 2, citing Weil & Brown, 

Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 11:38, 

5 Although the cases cite to different versions of the Rutter 

practice guide, the discussion in the guide as quoted in the cases 

and the Toms’ opening brief has not changed.
13

pp. 11-21.) This statement is dictum given the untimely filing in 

Sanabria of the memorandum of costs. (See United Steelworkers 

of America v. Board of Education (1984) 162 Cal.App.3d 823, 834 

[“dictum is a general argument or observation unnecessary to the 

decision which has no force as precedent”]; see also Fries, supra, 

173 Cal.App.4th at p. 187 [“Nor is the distinction Weil and Brown 

seeks to apply supported by the cited cases, Boonyarit or 

Sanabria. Neither holds that a voluntarily dismissed defendant 

must file a proposed judgment of dismissal together with the 

memorandum of costs.”].)

Finally, the Toms argue for the first time in their reply 

brief that even if their interpretation of rule 3.1700(a)(1) was 

incorrect (that a judgment of dismissal must precede the filing of 

a memorandum of costs), here there was no service of a written 

notice of dismissal. By failing to assert this argument in their 

opening brief, or to argue it in the trial court, the Toms have 

forfeited the issue on appeal. (Aptos Council v. County of Santa 

Cruz (2017) 10 Cal.App.5th 266, 296, fn. 7 [“Issues not raised in 

the appellant’s opening brief are deemed waived or abandoned.”]; 

Professional Collection Consultants v. Lauron (2017) 

8 Cal.App.5th 958, 972 [“‘“[I]t is fundamental that a reviewing 

court will ordinarily not consider claims made for the first time 

on appeal which could have been but were not presented to the 

trial court.”’”].)

Even had the Toms raised this argument earlier, it has no 

merit. Although the Toms are correct the record does not reflect 

whether a notice of entry of dismissal was served (other than the 

clerk’s indication on the request for dismissal that counsel was 

notified of the dismissal), “[a] prematurely filed memorandum of 

costs is ‘“a mere irregularity at best” that does not constitute 
14

reversible error absent a showing of prejudice’ and is treated ‘as 

being timely filed.’” (Lowry v. Port San Luis Harbor District

(2020) 56 Cal.App.5th 211, 221 [affirming award of costs even 

though judgment was entered after memorandum of costs was 

filed]; accord, Haley v. Casa Del Rey Homeowners Assn. (2007) 

153 Cal.App.4th 863, 880 [finding no reversible error where 

memorandum of costs was filed after jury returned special verdict 

but arguably before entry of judgment].) The Toms cannot show 

prejudice because they requested entry of dismissal of the 

complaint as to the Live Nation defendants, and the clerk notified 

counsel of the dismissal. Further, the requirement in California 

Rules of Court, rule 3.1700(b)(1) that a motion to tax or strike 

costs be filed within 15 days of service of the memorandum of 

costs does not contain any exception for a costs memorandum 

that is filed prior to written notice of dismissal of the action. And

it was the Toms, as the parties requesting dismissal, who were 

required to serve and file a notice of entry of dismissal. (See Cal.

Rules of Court, rule 3.1390 [“A party that requests dismissal of 

an action must serve on all parties and file notice of entry of the 

dismissal.”].)

B. The Trial Court Did Not Abuse Its Discretion in Denying 

the Toms’ Motion To File an Untimely Memorandum of 

Costs

As discussed, under rule 3.1700(b)(1) a motion to strike or 

tax costs must be served and filed no later than 15 days after 

service of the memorandum of costs. The failure to file a timely 

motion to tax costs constitutes a waiver of the right to object. 

(Douglas v. Willis (1994) 27 Cal.App.4th 287, 289; Jimenez v. City 

of Oxnard (1982) 134 Cal.App.3d 856, 859 [“By not filing said 
15

motion within the period specified in section 1033, plaintiffs 

waived the right to object to the costs claimed by the city.”].) 

Although it is undisputed that the Toms failed to file their motion 

to tax costs within the 15-day statutory period, the trial court had

discretion under section 473, subdivision (b), to excuse the late 

filing of a motion to tax costs. (Douglas, at p. 290.)

Section 473, subdivision (b), provides in part, “The court 

may, upon any terms as may be just, relieve a party . . . from a 

judgment, dismissal, order, or other proceeding taken against 

him or her through his or her mistake, inadvertence, surprise, or 

excusable neglect. Application for this relief . . . shall be made 

within a reasonable time, in no case exceeding six months, after 

the judgment, dismissal, order, or proceeding was taken.” To 

qualify for discretionary relief under section 473, subdivision (b), 

“the party seeking relief must show (1) a proper ground for relief, 

and (2) ‘the party has raised that ground in a procedurally proper 

manner, within any applicable time limits.’” (Henderson v. 

Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229; 

accord, Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419.) The 

trial court has discretion to grant relief under section 473, 

subdivision (b), “based on its evaluation of the nature of the 

mistake or error alleged and the justification proffered for the 

conduct that occurred.” (Austin v. Los Angeles Unified School 

Dist. (2016) 244 Cal.App.4th 918, 928.)

“‘A ruling on a motion for discretionary relief under 

section 473 shall not be disturbed on appeal absent a clear 

showing of [an] abuse’” of discretion. (Zamora v. Clayborn 

Contracting Group, Inc. (2002) 28 Cal.4th 249, 257; accord, 

Austin v. Los Angeles Unified School Dist., supra, 

244 Cal.App.4th at p. 929.) Under this standard, “we may 
16

reverse only if we conclude the trial court’s decision is ‘“so 

irrational or arbitrary that no reasonable person could agree with 

it.”’” (Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 

1241, 1249; accord, Sargon Enterprises, Inc. v. University of 

Southern California (2012) 55 Cal.4th 747, 773.)

Where the attorney’s error consists of a mistake of law, in 

determining whether the mistake is excusable under section 473, 

subdivision (b), we consider “the reasonableness of the 

misconception and the justifiability of the failure to determine 

the correct law.” (State Farm Fire & Casualty Co. v. Pietak, 

supra, 90 Cal.App.4th at p. 611.) A mistake of law is a valid 

ground for discretionary relief if the legal issue “‘is complex and 

debatable’” or the law is unsettled. (McCormick v. Board of 

Supervisors (1988) 198 Cal.App.3d 352, 360.) However, where 

“‘the alleged mistake of law is the result of professional 

incompetence based upon erroneous advice [citation], general 

ignorance of the law or lack of knowledge of the rules [citation], 

or unjustifiable negligence in the discovery or research of the law, 

laxness or indifference [citations][,] normally relief will be 

denied.’” (State Farm, at p. 611; accord, Hearn v. Howard (2009) 

177 Cal.App.4th 1193, 1206 [appellant’s subjective belief she had 

not been served did not constitute a mistake supporting relief].)

The Toms contend that even if their interpretation of the 

law was incorrect, they were entitled to relief because their filing 

of an untimely motion to tax costs was due to counsel’s “honest 

mistake of law.” They argue, “If Boonyarit is incorrect and a 

judgment of dismissal does not have to be filed along with a 

memorandum of costs, the Toms’ counsel’s reliance on Boonyarit

was a good faith but erroneous mistake of law and a 
17

paradigmatic example of a case where relief from default should 

be granted.”

The trial court did not abuse its discretion in finding 

Bhatt’s mistake of law was unreasonable because 

rule 3.1700(b)(1) clearly sets forth the 15-day requirement for 

filing a motion to tax or strike costs, and nowhere does the rule

require a judgment of dismissal be lodged before a party may file 

a memorandum of costs. Bhatt did not reasonably rely on dicta

in Boonyarit and Sanabria, or on the practice guide’s suggestion 

that the procedure for obtaining costs after a voluntary dismissal 

was not clear, especially in light of the extensive discussion of the

deadline and requirements for filing a motion to strike or tax 

costs in Fries, supra, 173 Cal.App.4th at pages 185 to 187, and 

the practice guide’s citation to Fries, which the guide suggested

“seems correct.” (Weil & Brown, Cal. Practice Guide: Civil 

Procedure Before Trial, supra, ¶11:38a, pp. 11-21.)

Further, Bhatt’s claim of relative inexperience was not a 

sufficient excuse because, as she admitted at the hearing in the 

trial court, she should have “researched further or asked 

[around]” or “just file[d] a motion to tax out of abundance [of]

caution.” (See Anderson v. Sherman (1981) 125 Cal.App.3d 228, 

238 [“considering the simple and obvious point of law about 

which defendants claim to have been mistaken and the 

elementary legal research which would have cleared it up, we can 

hardly say the court below exceeded the bounds of reason and 

thus abused its discretion when it refused to set aside the 

defaults”].) As the trial court found, even if Bhatt believed the 

memorandum of costs was prematurely filed, “it was not 

excusable for counsel to simply ignore the clear deadline to file 

the motion to tax costs.” Bhatt could, for example, have argued 
18

in a motion to tax costs that the memorandum of costs was 

premature, as the plaintiff asserted in Fries, supra, 

173 Cal.App.4th at page 184. The trial court also properly 

questioned the legitimacy of Bhatt’s claim of mistake, noting that 

in Bhatt’s conversation (or letter) to opposing counsel she had 

argued the merits of the Live Nation defendants’ request for costs 

without raising that the memorandum of costs was filed 

prematurely.

Finally, the Toms contend the trial court abused its 

discretion because the Live Nation defendants would not have 

been prejudiced by the court granting the Toms’ motion since the

Live Nation defendants could still have recovered any costs to 

which they were entitled. However, “[u]nder the discretionary 

provision in section 473, subdivision (b), . . . the absence of 

substantial prejudice is an important factor to consider rather 

than a requirement.” (New Albertsons, Inc. v. Superior Court

(2008) 168 Cal.App.4th 1403, 1420.) In the trial court the Live 

Nation defendants claimed prejudice from the almost six-month 

delay in the Toms challenging the Live Nation defendants’ costs, 

after the Live Nation defendants had litigated the case for a year 

and a half. Although this is a minimal showing of prejudice (if 

any), as a practical matter, a party seeking costs will almost 

never be able to show prejudice from a delay in the filing of a 

motion to tax or strike costs, absent an unusual circumstance 

such as a fire destroying all the moving party’s records. To 

require a showing of this type of prejudice would eviscerate the 

requirement that a party timely challenge a memorandum of 

costs. Under these circumstances, the trial court did not abuse 

its discretion in considering the minimal prejudice to the Live 
19

Nation defendants but finding relief was not warranted “given 

the clear absence of any excusable neglect.”

DISPOSITION

The order denying the Toms’ motion under section 473, 

subdivision (b), to file their untimely motion to tax costs is 

affirmed. The Live Nation defendants are to recover their costs 

on appeal.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.