Department 58

Hearing Date: November 8, 2023

Case Name: Maria Barajas Quintero v. KIA Motor America, Inc.

Case No.: 19STCV13263

Matter: Motion to Strike and/or Tax Costs

Moving Party: Defendant KIA Motor America, Inc.

Responding Party: Plaintiffs Maria Barajas Quintero and Oscar Quintero

Tentative Ruling: The Motion to Tax Costs is granted in part.

The parties have settled this Song-Beverly matter pursuant to a Code of Civil Procedure section 998 Offer to Compromise in the amount of $109,000. 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.

By way of background to this litigation, Plaintiffs purchased a new 2016 Kia Optima (Vehicle); the Vehicle was manufactured and distributed by Kia Motors America, Inc. (Defendant), which provided an express written warranty, and was serviced by KIA authorized repair facilities. After experiencing numerous issues related to the Vehicle’s suspension and engine, undergoing numerous repair attempts, and seeking a vehicle buyback—Plaintiffs filed this action on April 17, 2019 against Defendant KIA alleging violations of the Song-Beverly Act and fraud.

On February 10, 2023, Defendant Kia served a 998 Offer for $109,000.00, which was $5,293.07 less than Plaintiffs’ earlier November 7, 2022 998 offer. Plaintiff accepted Defendant KIA’s 998 offer on February 13, 2023. The Settlement included a full statutory “buyback” of Plaintiffs’ defective vehicle, incidental and consequential damages and civil penalties for the Vehicle.

Plaintiff Maria Barajas Quintero and Oscar Quintero (Plaintiffs) now argues that as the prevailing party, they entitled to fees and costs under Civil Code section 1794, subdivision (d).

Plaintiffs moved for an order awarding attorneys’ fees under the lodestar method in the amount of $212,453. They also requested an enhancement of 1.5, in the amount of $106,226.50, and costs of $30,916.14. The total requested was $349,595.64. The Court granted the motion for attorneys’ fees in the reduced amount of $202,953. The Court deferred a ruling on costs until the hearing on the motion to tax costs.

On June 27, 2023, Plaintiffs filed a memorandum of costs seeking costs in the amount of $30,916.14. Defendant Kia now moves to strike or tax Plaintiffs’ memorandum of costs. Plaintiffs oppose the motion.

The motion to tax costs is granted in part.

Legal Standard

The “prevailing party” is entitled to recover costs for suit in any action or proceeding. (Code Civ. Proc., § 1032, subd. (b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606.) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. (Code Civ. Proc., § 1032, subd. (a)(4).)

Recoverable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).) “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Verification of the memorandum of costs by the prevailing party’s attorney establishes a prima facie showing that the claimed costs are proper.¿(See Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267 [“There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum.”].) Mere conclusory assertions are insufficient to rebut a prima facie showing by the prevailing party. (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) “On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. [Citations.] Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.” (Ladas, supra, 19 Cal.App.4th at p. 774.)

Discussion

Defendant Kia moves for an order that Plaintiffs’ Memorandum of Costs be stricken, or the costs claimed should be taxed, in the sum of $20,958.99.

Item No. 1 – Filling Fees:

Defendant Kia moves to strike $250.35 in filing fees for unsuccessful and unnecessary motions. Defendant argues that the costs for these motions – a Motion to compel further document productions by Kia; a Motion to compel a further deposition of Kia’s person most knowledgeable; and a Motion for reconsideration of the Court’s Order granting Kia’s Motion for summary adjudication of Plaintiffs’ fraud causes of action and punitive damages claim – did nothing to advance litigation.

As a preliminary matter, Section 1033.5, subdivision (a)(1) makes expressly allowable as costs filing and motion fees. However, even as to costs otherwise allowable as a matter of right, the trial court retains authority to determine whether the costs were reasonably necessary to the conduct of the litigation and whether the amounts are reasonable. (Code Civ. Proc., § 1033.5, subd. (c); Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 244–245.)

Nonetheless, proof that a party was unsuccessful on a particular motion is not tantamount to a demonstration that the costs incurred were not reasonably necessary to the conduct of the litigation. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1200.)

In response, Plaintiffs assert that both of Plaintiffs’ motions to compel were ultimately granted at least in part, the motion for reconsideration was brought in good faith.

Based on the foregoing, Defendant have failed to demonstrate that the costs were not reasonably necessary to the conduct of litigation. Defendant does not address these costs in reply. The request to strike these costs is denied.

Item No 4 – Deposition Costs and Item No. 5 – Service of Process Costs:

Defendant Kia moves to strike $12,595.04 in deposition costs. Relatedly, Defendant also moves to strike $525.78 in service of process costs of certain deposition subpoenas.

Defendant argues that, given the relevant issues in a lemon law case – whether the problem afflicting the plaintiffs’ vehicle persisted after a reasonable number of attempts to correct it – there was no reason to incur the cost of taking any depositions other than the depositions of the Plaintiffs ($606.60 and $394.75), one deposition of Kia’s person most knowledgeable ($857.35), a deposition of the person most knowledgeable of Kia of Cerritos $483.25), and the deposition of Kia’s expert, Vince Petrangelo ($300.00). Thus, the corresponding costs for service of process for these deposition subpoenas in the amount of $525.78 was also unreasonable and unnecessary. Aside from this general assertion, Defendant does not make any particularized showing that the deposition costs (and the related service costs) incurred were unnecessary or unreasonable.

In opposition, Plaintiffs assert that these depositions “were necessary to obtain relevant information about Plaintiffs’ vehicle’s repair history, to authenticate and explain the records, and to determine if these witnesses had independent recollection of facts concerning the case.” (Opp. 8:27-9:1.) Plaintiffs also argue that dealership personnel depositions are important because, generally, defendants never agree “to the admissibility of the repair orders into evidence at trial so Plaintiffs must be prepared to proffer the dealership personnel testimony at trial to lay the requisite foundation to get the repair orders admitted into evidence.” (Opp. 9:1-5.)

Based on the foregoing, Defendant have failed to demonstrate that the costs were not reasonably necessary to the conduct of litigation. The request to strike these costs is denied

Item No. 8b – Expert Costs:

Defendant moves to strike $6,483.74 for expert witness fees. Defendant argues that a plaintiff in a Lemon Law case does not need to present expert testimony. (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1102 fn. 8 [“It is within the realm of common knowledge that a new car with an unremediable oil leak does not conform to its warranty, and no expert testimony is necessary to establish this proposition.”].)

Defendant’s argument is unpersuasive. Costs for reasonable expert fees are properly awarded to the prevailing party under the Song Beverly Act. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137-138; Civil Code, § 1794, subd. (d).) Thus, Defendant’s conclusory argument that expert witness fees are unnecessary in this type of litigation is insufficient to meet Defendant’s burden on this motion.

Defendant also argues that Plaintiffs’ claim for $6,483.74 in expert fees, supposedly based on 30.15 hours of unspecified services at unspecified, varying rates, is unreasonable, unsubstantiated and excessive. Further, Kia contends, Plaintiffs have not provided any documentation to support the fee.

In opposition, Plaintiffs submit the invoices of their expert, Thomas Lepper. (Devabose Decl., ¶ 5, Ex. B.) Plaintiffs contend Lepper’s assistance was important in determining the subject vehicle’s defects. Additionally, testimony about Plaintiffs’ vehicle, the existence of defects, determining what Defendant knew about the defects inherent in the subject vehicle, when Kia obtained this knowledge, and how Kia ultimately chose to respond (or fail to respond) to it, were all pivotal to the claims advanced by Plaintiffs and would have been testimony that Lepper was to provide.

Thus, the expert fees were necessary to the litigation and the Court declines to strike the costs in their entirety. However, some of the invoice entries reflected clerical, duplicative or unnecessary tasks. Accordingly, Plaintiffs’ expert costs will be reduced by $1,100.

Item No. 12 – Court Reporter Fees:

Defendant moves to strike $5,614.75 for court reporter fees. Defendant notes that under the Los Angeles Superior Court fee schedule, court reporters receive $764.00 for proceedings over 4 hours; $382.00 for proceedings between 1 and 4 hours; and a per diem of $30.00 for proceedings under 1 hour. Notwithstanding this reasonable pay scale, Plaintiffs’ claims court reporter fees in excess of this amount.

In opposition, Plaintiffs’ counsel provides their internal spreadsheet delineating these court reporter costs along with supporting invoices. (Devabose Decl., ¶ 8, Ex. A, E.) Plaintiffs also represent that Defendant stipulated to the use of these court reporters, undermining Defendant’s claim now that these services were unreasonable or unnecessary.

Defendant does not address these costs in reply. The request to strike these costs is denied.

Item No. 13 – Other:

Defendant moves to strike $1,104.08 for attorney services and messengers, appearance attorneys and travel. Defendant argues these costs are not allowed under Code of Civil Procedure section 1033.5. (Mot., 5:5-11 [citing Code Civ. Proc., § 1033.5, subd. (b)(3) [postage, telephone and photocopying charges not allowable]; Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1627 [Federal Express expenses not allowed]; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132 [messenger fees not allowed]; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775-76 [“Routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation.”].)

Although costs for courier or messenger fees are not specifically enumerated as allowable costs in Code of Civil Procedure section 1033.5, subdivision (a), they are also not prohibited by Section 1033.5, subdivision (b). Thus, messenger fees may be recoverable in a trial court’s discretion if reasonably necessary to the conduct of the litigation, pursuant to Code of Civil Procedure section 1033.5(c)(2). Further, in Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, the court explained: “Section 1794, subdivision (d), permits the prevailing buyer to recover both ‘costs’ and ‘expenses.’” (Jensen v. BMW of North America, Inc. (1995) 35 Cal. App. 4th at 137.) “[I]t is clear the Legislature intended the word ‘expenses’ to cover items not included in the detailed statutory definition of ‘costs’.” (Ibid. [emphasis added].)

In Ladas v. California State Automobile Association, a messenger fees award was upheld because sufficient evidence indicated they “were related to trial preparation, and were incurred for such matters as filing documents with the court, complying with appellants’ document demands, and transporting exhibits to and from the courtroom.” (Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 776.) These costs appear reasonable and necessary to the litigation.

Plaintiffs, in response, also submit a spreadsheet that show the costs incurred for appearance-attorney costs. (Devabose Decl., ¶ 4, Ex. A.) The Court notes that these costs are significantly lower than Plaintiffs’ counsel’s attorney fees, rendering them reasonable to litigation.

Finally, with respect to travel costs, such costs are not expressly prohibited by Code of Civil Procedure section 1033.5. Nor are recoverable travel expenses limited to deposition travel by attorneys who practice in the court's jurisdiction. (Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548.) Nonetheless, having raised the reasonableness of these costs, Plaintiffs did not satisfy their burden of showing that the parking and travel costs not identified as being within those two categories of costs related to local travel and parking for depositions or non-local travel were “reasonably necessary to the conduct of the litigation rather than merely convenient ....” (Code Civ. Proc., § 1033.5, subd. (c)(2).) Thus, the motion to strike is granted as to these costs in the amount of $119.45.

Conclusion

The motion to tax costs is granted in the total amount of $1,219.45 ($1,100 + $119.45). Plaintiffs also request attorney fees in the amount of $2,125.00 for opposing this motion. (Devabose Decl., ¶ 12.) The request for these fees is granted.

Defendant is ordered to pay to Plaintiff’s counsel, for costs of suit the sum of $29,696.69 ($30,916.14 - $1,219.45), and for attorney fees for the motion the sum of $2,125, on or before December 15, 2023.