Judge Alison Mackenzie, Case Number: 20STCV04034, Date: 2024-12-16 Tentative Ruling

Judge: Alison Mackenzie, Case: 20STCV04034, Date: 2024-12-16 Tentative Ruling

Case Number: 20STCV04034 Hearing Date: December 16, 2024 Dept: 55

NATURE OF PROCEEDINGS: Hearing on Defendant’s Motion to Strike or in the Alternative Tax Costs

Defendant’s Motion to Tax Costs is granted in part and denied in part.

BACKGROUND

The parties have settled this Song-Beverly matter pursuant to a Code of Civil Procedure section 998 Offer to Compromise. The parties were, however, unable to reach an agreement as to the amount of reasonable attorney fees or costs - thereby necessitating a motion for attorney fees and this motion to tax costs.

Plaintiff moved for an order awarding attorneys’ fees under the lodestar method in the amount of $123,006.00. The Court granted the motion for attorneys’ fees in the reduced amount of 77,532.50. The Court deferred a ruling on costs until the hearing on the motion to tax costs.

On August 14, 2024, Plaintiff filed a memorandum of costs seeking costs in the amount of $3,358. Defendant now moves to strike or tax Plaintiffs’ memorandum of costs. Plaintiff opposes the motion.

LEGAL STANDARD

Pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(1), certain items are allowable costs, including filing and motion fees, service of process fees, and deposition costs. Costs must be both reasonable in amount and reasonably necessary to the conduct of the litigation. Code Civ. Proc., § 1032; § 1033.5(c)(2) and (3).) To obtain a costs award, the prevailing party must serve and file a memorandum of costs. Cal. Rules of Court, rule 3.1700(a). If items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. ‘On the other hand, if items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.’ However, whether a cost item was reasonably necessary is still a question of fact to be decided by the trial court.” Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 (quoting Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. Supporting documentation such as bills or invoices are not required, unless costs are put in issue by a motion to tax costs. Id. at p. 167.

Civil Code § 1794(d) of the Song-Beverly Act authorizes a prevailing buyer to recover “costs and expenses … determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” The additional term “expenses” was included in CCP § 1794(d) to cover items that would not otherwise be included in the detailed statutory definition of “costs” under CCP § 1033.5. Jensen v. BMW of North America (1995) 35 Cal.App.4th 112, 137-138 (disapproved in part on other grounds in Rodriguez v. FCA US LLC, 17 Cal. 5th 189, 326). In Jensen, the court reversed the trial court’s denial of an award of expert witness fees pursuant to CCP § 1794(d) (which, unless ordered by the court, are not permitted pursuant to CCP § 1033.5), finding that the legislative intent with the addition of an award of “costs and expenses” to the statute, is to permit the recovery of expert witness fees by prevailing buyers under the Song-Beverly Act. Ibid. However, the term “expenses” is not so broadly construed to allow automatic recovery of all expenditures upon the filing of a memorandum of costs. Rather, the prevailing buyer continues to bear the burden of showing that costs or expenses were (1) reasonably necessary to the conduct of litigation and (2) reasonable in amount. Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816; see also Civil Code § 1794(d).

ANALYSIS

There is no dispute that Plaintiff is the prevailing party in this action entitled to costs and expenses pursuant to CCP § 1794(d). However, Defendant objects to costs totaling $2489.61.

I. Filing Fees

First, Defendant argues that it should not have to pay filing fees totaling $240 because the Motion to Compel Compliance, Motion for Sanctions, Motion to Stay, and Motion for Attorney’s Fees were frivolous. While the Court denied the Motion for Sanctions, and the Motion to Stay was taken off calendar, that does not make them frivolous. Nor does the fact that Plaintiff’s counsel routinely rejects Defendant’s fee offers and opts for fee motions mean that those motions are unreasonable. Accordingly, the Court declines to strike or tax this cost.

II. Jury Fees

Second, Defendant objects to paying the $150 jury fees because the case did not go to trial. Although the case did not go to trial, it was not unreasonable for Plaintiff to post jury fees, which Plaintiff correctly notes are nonrefundable and due at the initial case management conference. Code Civ. Proc. § 631. Accordingly, the Court declines to strike or tax this cost.

III. Court Reporter

Defendant objects to the $550 Plaintiff anticipated spending on court reporter fees at the hearing on the Motion for Attorney’s fees, arguing that it is a cost that had not yet been incurred, and that this was an estimate.

While the court reporter fee is a permissible cost, Defendant has properly objected to the estimate. As this cost has since been incurred, the burden shifts to Plaintiff to provide evidence of that cost. The Declaration of David N. Barry attached to the Plaintiff’s Opposition asserts that the invoice is attached as Exhibit 2, but no such invoice was included. In the absence of any evidence establishing the cost actually incurred, the Court strikes the $550 court reporter fee.

IV. Electronic Filing or Service

Defendant objects to $529.77 in “[f]ees for electronic filing or service” because Plaintiff’s counsel provides no explanation for these alleged costs.

Plaintiff responds by directing Defendant to the court website portal and the documents that are available to both parties, saying, “Plaintiff did not have superior access as the[] costs spent for electronic filing and service are readily available to GM.” Opp. at p. 5: 22-23. While the Court, likewise, has access to these records, it was also unable to deduce how Plaintiff arrived at the $529.77 figure. Plaintiff paid a total of $1,332.50 in eCourt fees. By the Court’s count, after subtracting jury, filing, and motion fees separately billed, Plaintiff’s eCourt fees total $207.50. Accordingly, the Court taxes $322.27.

V. Mileage and Parking

Defendant objects to the $343.24 in costs for mileage and parking fees, arguing that even necessary travel expenses are an inherent cost of doing business. While not ordinarily recoverable as “costs,” mileage and parking are recoverable “expenses” under the Song Beverly Act because they are reasonably necessary. Defendant provides no authority for the proposition that inherent costs of doing business mean that it is not recoverable as an expense. Indeed, it is precisely those expenses that are reasonably necessary for conducting litigation that are recoverable. Because Defendant does not challenge these expenses occurred, the Court denies the motion to strike or tax theses costs.

VI. Courtesy Copies

Finally, Defendant objects to $616.60 spent on courtesy copies and $60.00 in filing fees for Ex Parte Application and Motion to Compel Further Responses to FROGS.

While the Court does not currently require courtesy copies, it previously did. Barry Decl. ¶ 6(e)(i). Additionally, what Defendant characterized as a filing fee for the Ex Parte Application was actually for delivery of a courtesy copy. Barry Decl. ¶ 6(e)(iv). Accordingly, these are recoverable expenses.

CONCLUSION

Defendant’s Motion to Tax Costs is granted in part and denied in part. The Court orders that $872.27 ($550 +$322.27) be taxed. That leaves the total costs awarded to Plaintiff in the amount of $2485.73 (3,358 – 872.27.00).