Department 58

Hearing Date: February 10, 2025

Case Name: Juan Arellanes Fausto v. American Honda Motor Co., Inc.

Case No.: 21STCV31368

Matter: Motion to Strike and/or Tax Costs

Moving Party: Defendant American Honda Motor Co., Inc.

Responding Party: Plaintiffs Juan Arellanes Fausto and Patricia Diego

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 $72,500. 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.

On December 23, 2024, Plaintiffs Juan Arellanes Fausto and Patricia Diego (Plaintiffs) moved for an order awarding attorneys’ fees under the lodestar method in the amount of $97,683.50. They also requested an enhancement of 1.5, in the amount of $48,841.75, and costs of $23,129.27. The total requested was $169,654.52. The motion for attorney fees is set to be heard on March 17, 2025.

Also, on December 23, 2024, Plaintiffs filed a memorandum of costs seeking costs in the amount of $23,129.27.

On January 8, 2023, Defendant American Honda Motor Co., Inc. (Defendant Honda) moved 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 moves for an order that Plaintiffs’ Memorandum of Costs be taxed in the sum of $16,360.95.

Item No. 8(b) – Expert Fees:

Plaintiffs request $7,000.00 for expert fees. Defendant challenges the reasonableness of these costs.

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).)

Here, Plaintiff properly substantiated the expert witness fees by attaching the relevant invoices. (Devabose Decl., ¶ 5, Ex. B.) However, in reviewing the invoices, the fees incurred appear excessive. For example, Mr. Micale has numerous billing entries for “Coordination and Planning.” Based on this vague description, the Court cannot ascertain the reasonableness of these fees and will reduce the fees by 1.5 hours ($600). Further, Mr. Micale also billed for over six hours of deposition preparation for a five-hour deposition; these costs are excessive. The Court will reduce these hours by five hours ($2,000).

Thus, these costs are reduced by $2,600.

Item No. 11 – B&W Printing Bate Stamp / Tabs / Binders / Messenger:

Plaintiffs also seek $1,876.98 for “B&W Printing Bate Stamp / Tabs / Binders / Messenger;” for “models, blowups, and photocopies of exhibits.” Defendant challenges these costs on the grounds that there are no underlying receipts of the actual cost incurred and that these costs were are not helpful to the trial of fact where there was no trial.

In opposition, Plaintiffs substantiate these costs. (Devabose Decl., ¶ 7, Ex. D.) Further, Plaintiffs represent that “[t]hese costs were incurred to create binders, exhibits, and boxes for use at trial and were required to be delivered to the Court for trial calls and FSC.” (Opp., 9:12.)

Defendant’s challenge to these costs is unpersuasive. While there was no trial, it was reasonably necessary to incur these costs in the anticipation of trial as this matter settled days before trial. The motion to tax these costs is denied.

Item No. 12 – Court Reporter Fees:

Plaintiff’s claim $5,760.00 in court reporters’ fees as costs. Defendant contends this amount was excessive, unreasonable, and not contemplated under the Code of Civil Procedure.

Here, Defendant argues that on several of the dates where court reporter fees were incurred, no hearing took place and, additionally, no fee should be permitted for the anticipated court reporter fees for the future hearing on Plaintiffs’ Motion for Attorney Fees.

The opposition does not address Defendant’s argument that no hearing occurred on October 24, 2022. Thus, this cost shall be struck ($700). Further, it is not proper to obtain costs for anticipated costs as they have not yet been incurred; as such, the Court will also reduce the cost for the future hearing on the motion for attorney fees ($600).

However, a court reporter fee incurred because a hearing was continued may still be reasonable and necessary to the litigation depending on the circumstances of the continuance. Nothing is submitted to suggest that the hearing did not occur because of some bad faith or gamesmanship on the part of Plaintiff. Thus, the cost appears reasonable and necessary to the litigation. The motion to tax these costs is denied.

Item No. 13 – Other Costs:

Plaintiffs seek $1,063.56 for “Attorney Services and Messengers for Court Filings and Service.”

Costs for courier or messenger fees, although not specifically enumerated as allowable costs under Code of Civil Procedure section 1033.5(a), may still be recoverable in the trial court's discretion if reasonably necessary to the conduct of the litigation. (Foothill–De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30.)

Here, Plaintiff substantiates the $1,063.56 for incurred courier fees. (Devabose Decl., ¶ 4, Ex. A.) Further, Plaintiffs represent that they paid companies commonly used by law firms to perform certain tasks for the purpose of filing court documents such as the Complaint and Case Management Statements. (Devabose Decl., ¶ 4, Ex. A.)

Plaintiffs’ use of a messenger delivery services to serve court records constitutes a reasonable and necessary cost of conducting litigation. The motion to tax these costs is denied.

Plaintiffs also seek $325 for “Court Appearance Professionals.” Defendant argues it should not bear the cost of this “convenience” to Plaintiffs’ attorneys. However, these costs are significantly lower than Plaintiffs’ counsel’s attorney fees; thus, these costs were reasonable and necessary and ultimately to Defendant’s benefit. The motion to tax these costs is denied.

Finally, Plaintiffs claims $335.41 for “Travel” costs. 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 travel costs 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 $335.41.

Conclusion

The motion to strike is granted in the total amount of $4,235 ($2,600+$1,300 + $335.41). Plaintiffs’ counsel also requests attorney fees in the amount of $2,125.00 for opposing this motion. (Devabose Decl., ¶¶ 10-12.) The request for attorneys’ fees may be submitted as part of the attorney’s fees motion. With respect to costs, the total amount payable by Defendant to Plaintiff is $18,894.27 ($23,129.27 – 4,235). The date when this amount is payable will be determined at the hearing on the motion for attorneys’ fees.