Judge: Bruce G. Iwasaki, Case: BC644440, Date: 2023-04-11 Tentative Ruling
Case Number: BC644440 Hearing Date: April 11, 2023 Dept: 58
Judge Bruce G. Iwasaki
Hearing
Date: April 11, 2023
Case
Name: Reid Kawakami v. Toyota
Motor Sales USA, Inc. et al.
Case
No.: BC644440
Matter: (1) Plaintiff’s Motion for Attorneys’ Fees
and Reimbursement of Costs and Expenses; and
(2) Defendant’s Motion to Strike Plaintiff’s Memorandum of
Costs, or in the Alternative, to Tax Costs
Moving
Party: (1) Plaintiff Reid
Kawakami
(2)
Defendant Toyota Motor Sales USA, Inc.
Responding
Party: (1) Defendant Toyota Motor
Sales USA, Inc.
(2)
Plaintiff Reid Kawakami
Tentative Ruling: (1)
The Motion for Attorney’s Fees is granted for a total of $412,943.50; and
(2) The
Motion to Strike Plaintiff’s Memorandum of Costs, or in the Alternative, to Tax
Costs is denied. Costs are awarded in the amount of $50,845.12.
This is a lemon-law action. As
alleged in the Complaint and developed in the trial record, Plaintiff Reid
Kawakami (“Plaintiff”) leased a new 2014 Lexus IS 250 on May 2, 2014. After experiencing issues relating to the
navigation and radio systems, Plaintiff brought the subject vehicle to the
authorized repair facilities of Defendant Toyota Motor Sales, U.S.A., Inc.
(“Defendant”) on six different occasions, but these malfunctions persisted. (Sannipoli Decl. ¶ 8.) Due to Defendant’s refusal to assist Plaintiff
in rectifying the situation, Plaintiff retained counsel to pursue his rights
under the Song-Beverly Act. (Sannipoli
Decl. ¶¶ 9-10, Exh. D.) Prior to
commencement of this action, Plaintiff proposed a settlement wherein Defendant
would repurchase the subject vehicle and pay $3,900 in attorney fees and cost,
but Defendant rejected this offer. (Sannipoli
Decl. ¶¶ 10-11, 12-14; Exhs. D-E.) Consequently,
on December 21, 2016, Plaintiff initiated this action against Defendant,
alleging violations of the Song-Beverly Act. (See generally Compl.)
On February 2, 2017, Plaintiff
attempted again to resolve this matter through settlement and agreed to waive
his demand for civil penalties. (Sannipoli
Decl. ¶¶ 15-17, Exh. F.) Defendant did
not respond to the offer and proceeded to engage in discovery. (Sannipoli Decl. ¶¶ 20-21.) Plaintiff
attempted to renew these settlement discussions but contends he was ignored
each time. (Sannipoli Decl. ¶¶ 25-26, 34-37, 47-48, 56-57; Exhs. H, J-K, M-N.) On February 12, 2018, the parties engaged in a
telephonic mediation, but the parties were unable to reach an agreement. (Sannipoli Decl. ¶ 59.)
By 2019, the parties had completed
discovery, and at this stage, Defendant was only willing to offer $25,000,
inclusive of attorney fees and costs, and Plaintiff rejected this offer. (Sannipoli Decl. ¶¶ 87-88, Exh. U.)
After a multitude of trial continuances, trial eventually
commenced on October 3, 2022. (See
Sannipoli Decl. ¶¶ 32, 53, 60-61, 68-69, 81-82, 89-90, 92-93, 94-97, 100, 103,
106-107, 109-111, 113, 116-121, 125-129, 141-142, 144-145, 147-152, Exs. O, S,
V, W-X, BB-CC, EE-GG, II, KK-MM.) On
October 10, 2022, a jury verdict was reached in Plaintiff’s favor, awarding
Plaintiff restitution and partial civil penalties. (See Special Verdict dated October 10, 2022.) On November 2, 2022, the judgment on the
special verdict was signed by the Court, decreeing that Plaintiff is the
prevailing party and is entitled to recover from Defendant a judgment in the
amount of $100,000 as well as to seek attorney’s fees, costs and expenses. Thereafter,
Plaintiff filed a Memorandum of Costs (“MOC”) on November 9, 2022.
Now, Plaintiff moves for an order
awarding attorneys’ fees under the lodestar method in the amount of $412,943.50. He also requests a 1.3 multiplier to lodestar
adding $123,883.05, and costs of $50,845.12.
Plaintiff requests a total of $587,671.67. Plaintiff’s request for costs is subjected to
Defendant’s motion for strike and/or tax costs. Each motion shall be addressed
further below.
I.
Motion
for Attorneys Fees and Reimbursement of Costs and Expenses
Legal Standard
A
prevailing buyer in an action under Song-Beverly “shall be allowed by the court
to recover as part of the judgment a sum equal to the aggregate amount of costs
and expenses, including attorney’s fees based on actual time expended,
determined by the Court to have been reasonably incurred by the buyer in
connection with the commencement and prosecution of such action.”¿¿(Civ. Code,
§ 1794,¿subd. (d).) The Legislative
policy supports full recovery of reasonable attorney’s fees. Warren v. Kia Motors America,
Inc. (2018) 30 Cal.App.5th 24, 39 [“because this matter involve[d] an individual plaintiff suing under
consumer protection statutes involving mandatory fee-shifting provisions, the
legislative policies are in favor of [plaintiff’s] recovery of all attorney fees reasonably expended, without limiting the fees
to a proportion of her actual recovery”](Warren).)
The
prevailing party has the burden of showing that the requested attorney fees were
“reasonably necessary to the conduct of the litigation, and were reasonable in
amount.” (Robertson v. Fleetwood Travel Trailers of California Inc.¿(2006)
144 Cal.App.4th 785, 817.) The party seeking attorney fees “ ‘is not
necessarily entitled to compensation for the value of attorney services
according to [his] own notion or to the full extent claimed by [him].’ ” (Levy
v. Toyota Motor Sales, USA, Inc.¿(1992) 4 Cal.App.4th 807, 816.)¿¿Therefore,
if the “time expended or the monetary charge being made for the time expended
are not reasonable under all the circumstances, then the court must take this
into account and award attorney fees in a lesser amount.” (Nightingale v.
Hyundai Motor America¿(1994) 31 Cal.App.4th 99, 104.)¿¿
¿¿
A court may “reduce a fee award based
on its reasonable determination that a routine, noncomplex case was overstaffed
to a degree that significant inefficiencies and inflated fees resulted.”¿¿(Morris
v. Hyundai Motor America¿(2019) 41 Cal.App.5th 24, 39.)¿¿It is also
appropriate to reduce an award based on inefficient or duplicative efforts. (Id.¿at
p. 38.) However, the analysis must be “reasonably specific” and cannot rely on
general notions of fairness. (Kerkeles¿v. City of San Jose¿(2015) 243
Cal.App.4th 88,¿102.)¿¿Moreover, in conducting the analysis, courts are not
permitted to tie any reductions in the fee award to some proportion of the
buyer’s damages recovery. (Warren v. Kia Motors America, Inc.¿(2018) 30
Cal.App.5th 24, 39.)
Discussion
Plaintiff seeks $412,943.50 in
attorneys’ fees with a 1.3 multiplier in the amount of $123,883.05. The amount includes anticipated fees of: (1) $5,850.00
for reviewing Defendant’s opposition, drafting the reply, and preparing for and
attending the hearing for the fee motion itself; and (2) $5,850.00 for
reviewing Defendant’s motion to tax costs, drafting an opposition to the same,
and preparing for and attending the hearing.
Defendant contends that the Court
should impose a blanket reduction on Plaintiff’s claimed attorney fees or deny
them outright. As to the specific
billing entries, Defendant argues the following: (1) Plaintiff’s counsels’ hourly
rates are excessive; (2) the case was overstaffed; (3) there are instances of block-billing;
(4) many of the billing entries are exaggerated, unreasonable and duplicative;
and (5) no multiplier is warranted.
A calculation of attorneys’ fees for
a Song-Beverly action¿begins with the “lodestar” approach, under which the
Court fixes the lodestar¿at¿“the number of hours reasonably expended multiplied
by the reasonable hourly rate.”¿ (Margolin v. Regional Planning Com.¿(1982)
134 Cal.App.3d 999, 1004-1005.)¿ “California courts have consistently held that
a computation of time spent on a case and the reasonable value of that time is
fundamental to a determination of an appropriate attorneys’ fee award.”¿ (Ibid.)¿
“ ‘The reasonable hourly rate is that prevailing in the community for similar
work.’ ”¿ (Id.¿at p. 1004.)¿ The lodestar figure may then be adjusted,
based on consideration of factors specific to the case, in order to fix the fee
at the fair market value for the legal services¿provided.¿ (Serrano v.
Priest¿(1977) 20 Cal.3d 25, 49;¿PLCM Group, Inc. v. Drexler¿(2000)
22 Cal.4th 1084, 1095.)
“[T]rial courts need not, and indeed
should not, become green-eyeshade accountants. The essential goal in shifting
fees (to either party) is to do rough justice, not to achieve auditing
perfection. So trial courts may take into account their overall sense of a
suit, and may use estimates in calculating and allocating an attorney's time.”
(Fox v. Vice (2011) 563 U.S. 826, 838.)
Attorneys’ fees
As a preliminary matter, the Court rejects Defendant’s argument
that the Court is authorized to deny Plaintiff’s request for attorney fees in
their entirety. (See Opposition re:
Attorney Fees at pg. 3.) Pursuant to
Civil Code § 1794(d), Plaintiff’s entitlement
to recover his attorney fees is mandatory. As a result, Defendant’s assertion that the
court has discretion to deny excessive fees in their entirety is unpersuasive.
In its reliance on Chavez v. City of Los Angeles (2010) 47 Cal.App4th
970 and Serrano v. Unruh (1983) 32 Cal.3d 621, 635, Defendant fails to
acknowledge that neither case addressed the issue of mandatory fees under Civil
Code 1794(d). Furthermore, the Court declines to adopt Defendant’s suggested
approach of applying a blanket reduction of 75% to the lodestar. (See
Opposition re: Attorney Fees at pp. 3-5, 12, 15.) Instead, the lodestar method
is the agreed-upon method by courts when assessing attorney fees. (Ketchum v. Moses
(2001) 24 Cal.4th 1122, 1135; See also Hanna v. Mercedes-Benz USA, LLC
(2019) 36 Cal.App.5th 493, 509-512.) Any proper reduction to the lodestar would
be by reducing the total hours spent and adjusting the hourly rate, if
appropriate. (See Morris v. Hyundai
Motor America (2019) 41 Cal.App. 5th 24, 32.)
Hourly Rate
Defendant contends that the hourly
rates for attorneys’ fees are unreasonable.
(Opposition re: Attorney Fees at pp. 12-14.)
In assessing the reasonableness of
hourly billing rates,¿“the court may rely on its own knowledge and familiarity
with the legal market, as well as the experience, skill, and reputation of the
attorney requesting fees [citation], the difficulty or complexity of the
litigation to which that skill was applied [citations], and affidavits from
other attorneys regarding prevailing fees in the community and rate
determinations in other cases.”¿¿(569 East County Boulevard LLC v.
Backcountry Against the Dump, Inc.¿(2016) 6 Cal.App.5th 426, 437; see¿Mountjoy
v. Bank of America, N.A.¿(2016) 245 Cal.App.4th 266, 272 [“ ‘ “a reasonable
hourly rate is the product of a multiplicity of factors…[including] the level
of skill necessary, time limitations, the amount to be obtained in the
litigation, the attorney’s reputation, and the undesirability of the case” ’ ”].)¿
The Court disagrees with Defendant’s
contention that the rates are unreasonable.
Here, a review of Plaintiff’s counsel Jordan K. Sannipoli’s declaration
in support of the motion for attorney’s fees suggests otherwise. In this
declaration, Sannipoli provides a description of each attorneys’ years of
experience and includes accompanying exhibits.
Additionally, it is noted that the hourly rates of each attorney are
historical and are not based on 2022/2023 rates. (See Sannipoli Decl., Exhibit B.) The Court concludes that fees, ranging from
$285 to $685 per hour, as requested are reasonable. The rates are supported by substantial
evidence under the present circumstances.
(Sannipoli Decl., ¶¶ 160-179.) Specifically,
Counsel Sannipoli submits the 2022 hourly rates of various attorneys in this
field who practice in Southern California, indicating that the rates range from
$550 to $750 per hour. (Sannipoli Decl. ¶ 166.) It is also noted that this firm
also utilized members of their support staff, whose rates ranged between $135
to $235 during the life of this case. (Sannipoli Decl. ¶¶ 6, 163, Exh. B.)
These rates are also reasonable.
With regard to Defendant’s
suggestion that the Court should reduce the requested hourly rates to match
those changed by Defendant’s counsel, the Court rejects this argument. (See Opposition re: Attorney Fees at pg. 13.)
In this context, courts have found that the hourly rates charged by plaintiff’s
counsel and defense counsel are not comparable.
(Warren v. Kia Motors America, Inc., supra, 30 Cal.App.5th
at p. 40 [comparing plaintiff’s lawyers’ hourly rate to defense counsel is “not a good comparison, given that . . . plaintiff's attorneys
work pursuant to contingency arrangements and Kia's defense attorneys do not”].) Defendant fails to
present any evidence to support the assertion that the requested hourly rates
should be reduced. (See Graciano v.
Robinson (2006) 144 Cal. App. 4th 140, 156.)
Plaintiff’s requested rates are reasonable.
Block-Billing
Defendant also argues that the
submitted billing records includes countless instances of block-billed entries.
(Opposition re: Attorney Fees at pg. 5.)
“Block billing is not
objectionable ‘per se,’ though it certainly does increase the risk that the
trial court, in a reasonable exercise of its discretion, will discount a fee
request. Block billing is particularly problematic in cases where there is a
need to separate out work that qualifies for compensation…from work that does
not. (Jaramillo v. County of Orange (2011) 200 Cal.App.4th
811, 830 [citations omitted].)
Even though Plaintiff’s attorneys
grouped their tasks into blocks of time, as opposed to individual entries per
task, the descriptions provided for each block sufficiently apprise the Court
about the tasks that were conducted. This is not a reason to reduce the fee
request.
Overstaffing
Defendant also argues that the
billing entries were padded because the utilization of eighteen attorneys is excessive. (Opposition re: Attorney Fees at pp. 6-7,
13.)
While a total of eighteen attorneys
were involved at various junctures in this case, it should be noted that this
case spanned over six years, which inevitably resulted in instances of attorney
turnover. (Sannipoli Decl. ¶ 160-162.) The
bulk of the work was done by only three lawyers: Joshua Youssefi, Stephanie
Pengilley, and Jordan Sannipoli. (Sannipoli Decl. ¶¶ 6, Exh. B.) Furthermore, to minimize the occurrence of
duplicative billing, Counsel Sannipoli removed some time entries. (Sannipoli Decl. ¶ 4.) The Court finds no evidence of overstaffing
that would justify a reduction in claimed time.
Vague,
Duplicate, and Improper Entries
Lastly, Defendant argues that Plaintiff’s billing entries
are exaggerated, unreasonable, and duplicative and focuses on the following
categories of tasks: (1) motions in limine; (2) review of depositions; (3)
internal communications; (4) travel time; and (5) other excessive entries. (Opposition re: Attorney Fees at pp. 7-12.)
Having reviewed the itemized entries, the Court addresses each of these issues
in turn:
Defendant has failed to indicate that the billing entries
were duplicative. (McGrath v. County of Nevada (9th Cir. 1995) 67 F.3d
248, 255 [recognizing “that ‘the participation of more than one attorney does
not necessarily constitute an unnecessary duplication of effort.’ ”].)
·
Motion
in Limine: Defendant argues that the billing
record contains duplicative entries relating to the time spent on the motions
in limine and, despite the countless reviews, these motions contained factual
errors that were not corrected until August 2022. (Opposition re: Attorney Fees at pp.
7-9.) The Court notes that based on
Plaintiff’s counsels’ extensive knowledge in Song-Beverly actions, it would be
presumed that certain tasks would be streamlined, requiring less time. A review
of the time entries proves this to be true:
o
For
instance, on January 25, 2018, less than six hours were expended drafting six
separate motions in limine and their accompanying papers.
o
Thereafter,
on April 16, 2019, nearly six hours were expended in drafting oppositions to
Defendant’s motions in limine, and this task was delegated to a non-attorney.
o
Next,
on April 24, 2019, Joshua Yousefi spent a portion of 1.50 hours reviewing those
oppositions.
o
On
June 14, 2019, Counsel Youssefi expended a portion of 1.80 hours in reviewing
their own motions in limine to determine if any changes need to be made.
o
In
October and November 2019, David McGaffey had entries where he spent a portion
of his billed hours reviewing both parties of motions in limine. It is noted
that these entries either indicated that time was spend reviewing trial
exhibits for accuracy as well as appearing for and attending a Final Status
Conference, inclusive of travel time.
o
On
March 9, 2021, Counsel Yousefi reviewed the motions and oppositions of each
parties’ motions in limine, which would be necessary after a year. This entry
also accounts for communications with Plaintiff as to his direct examination
and revisions to the same.
o
On
August 8, 2022, Counsel Yousefi spent a portion of this 4.3 hours reviewing the
motions in limine and their oppositions as well as drafting and reviewing
Plaintiff’s opposition to Defendant’s two new motions in limine.
o
By
August 22, 2022, Counsel Yousefi spent 2.9 hours in reviewing Plaintiff’s
motions in limine to determine the ones that are still relevant or need
updating due to new case law. The entry also notes that changes were made and
new motions in limine were submitted.
o
Taken
together, the Court does not find that these entries suggest that Plaintiff’s
counsel engaged in duplicative or excessive billing. Rather, it shows that only
a few attorneys were involved in the preparation and review of the motions in
limine and their oppositions. Moreover, based on the descriptions of each of
these time entries, it shows that the time incurred was not solely devoted to
the motions in limine. Ultimately, Plaintiff succeeded on some of these
motions, and consequently, because Plaintiff’s attorney spent the time
incurring these hours, they are recoverable.
(Civ. Code § 1794(d).)
·
Review
of Depositions: Defendant
also argues it is excessive that Plaintiff’s counsels billed 379.3 hours in
reviewing eleven deposition transcripts, especially when only a few testified
at trial. (Opposition re: Attorney Fees
at pp. 9-10.) However, this
representation is not accurate because many of the billing entries report that
the attorney engaged in other specific tasks, such as preparing opening
statements, discussing trial strategy, preparing for direct and
cross-examination. Furthermore, it is
immaterial that not all of the deponents ultimately testified at trial because the
hours expended were incurred. (Civ. Code § 1794(d).) Furthermore, upon the
Court’s review of the billing entries, it does not find that the time spent
review the several depositions were excessive. As noted above, these reviews
were often a part of other tasks. Also,
as the case approached a firm trial date, the billing entries show that
deposition summaries were either being review or drafted. Thus, this shows that Plaintiff’s counsels
were efficiently utilizing their time.
·
Internal
Communications: Next, Defendant
argues that the billing records show that an excessive amount of time was spent
amongst the attorneys in meetings.
(Opposition re: Attorney Fees at pp. 10-11.) In this regard, Defendant claims that 94.8
hours were spent by at least two attorneys in attending meetings. However, a review of the billing entries shows
that these entries include other detailed tasks. Attorneys within in a firm
will need to discuss a case together to determine strategy and other
matters. Defendant fails to highlight in
its opposition an instance where a meeting could be perceived as too long.
·
Travel
Time: Defendant asserts that the billing
entries for trial and non-trial related travel are unreasonable because the
attorneys are traveling from San Diego when they have an office in Los
Angeles. (Opposition re: Attorney Fees
at pg. 11.) This argument is
unpersuasive for two reasons. First, as Plaintiff explains in his reply, many
of the hours that Defendant objects to are not strictly related to travel, but
they are in addition to attending hearings and depositions. Thus, Defendant improperly construes the
submitted billing entries. Second, the Court
does not find that the aggregate time spent travelling is unreasonable or excessive because
conducting discovery and participating in trial are in furtherance of the
action.
·
Other
Excessive Entries: Lastly,
Defendant argues that several entries involving the following tasks are
excessive: trial preparation, review of the repair orders, preparing opening
and closing statements, client communication, and preparation of the fee motion
and Plaintiff’s memorandum of costs.
(Opposition at pp. 11-12.) For
instance, Defendant complains of the time various attorneys and staff
communicated with Plaintiff. But
attorneys are ethically obligated to communicate with their clients about
significant developments in the case and responding to inquiries. (Rules of Professional Conduct, Rule
1.4.) Considering this case continued
for six years, it is reasonable that Plaintiff’s attorneys would communicate
often.
Based on the foregoing, the Court finds
that a reduction to these entries are not warranted.
Anticipated
Billing
Defendant
does not raise any argument objection to Plaintiff’s counsels’ anticipated
hours in (1) reviewing Defendant’s opposition, drafting the reply, and
preparing for and attending the hearing for the fee motion itself; and (2) reviewing Defendant’s motion to tax costs,
drafting an opposition to the same, and preparing for and attending the
hearing. Plaintiffs’ attorneys
anticipated spending 10 hours on each of these task blocks, resulting in 20
anticipated hours. Considering not objection
has been made and these documents were submitted, the Court finds that these
hours are also reasonable.
Multiplier
adjustment
Plaintiff seeks a 1.3 lodestar
multiplier based on the risk of taking on the case and the delay involved. Relevant
factors to determine whether an enhancement is appropriate include (1) the
novelty and difficulty of the questions involved, (2) the skill displayed in
presenting them, (3) the extent to which the nature of the litigation precluded
other employment by the attorneys, (4) the contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th
1122, 1132.) This was not a complex or
novel matter; a multiplier is unwarranted (Thayer
v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 834.)
In addition to the expertise
demonstrated in this case, Plaintiff argues that delay in payment in another
reason for granting an enhancement.
(Motion re: Attorney Fees at pg. 15, relying on Graham v. Daimler
Chrysler Corp. (2004) 34 Cal.4th 553, 584.) But that factor is part of the increased
hourly rate for contingency fee work. To
consider that factor as a basis for a multiplier would be double counting. The¿contingent risks, skill, and
difficulty¿Plaintiffs’ attorneys¿assert are absorbed by¿their¿hourly
rates.¿¿(See¿Robertson v. Fleetwood Travel Trailers of California. Inc.¿(2006)
144 Cal.App.4th 785, 822.)
Accordingly, Plaintiff’s request for
a lodestar multiplier is denied.
II.
Motion
to Strike Plaintiff’s Memorandum of Costs or, in the Alternative, to Tax Costs
Legal Standard
“‘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. 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.’” (Nelson v. Anderson (1999) 72 Cal.App.4th 111,
131.)
“[T]he mere filing of a motion to tax costs may be a
‘proper objection’ to an item, the necessity of which appears doubtful, or
which does not appear to be proper on its face. [Citation] However, ‘[i]f
the items appear to be proper charges the verified memorandum is prima facie
evidence that the costs, expenses and services therein listed were necessarily
incurred by the defendant [citations], and the burden of showing that an item
is not properly chargeable or is unreasonable is upon the [objecting party].’
[Citations]” (Id.)
“The court’s first determination, therefore, is whether the
statute expressly allows the particular item, and whether it appears proper on
its face. [Citation] If so, the burden is on the objecting party to show them
to be unnecessary or unreasonable. [Citation]” (Id.)
A prevailing party is entitled as a matter of right to
recover costs in any action or proceeding, except as otherwise expressly
provided by statute. (Code Civil Proc., §1032, subd. (b).) California law
recognizes three types of litigation costs: allowable, not allowable, and
discretionary. (Id. §1033.5, subd. (a), (b), (c)(4).) Items
not specifically allowable as costs under section 1033.5, subdivision (a), and
not specifically prohibited under section 1033.5(b), may be allowed as costs at
the discretion of the trial court if reasonably necessary to the conduct of the
litigation. (Citizens for Responsible Development v. City of West Hollywood
(1995) 39 Cal.App.4th 490, 506, citing Ladas v. California State Auto Association
(1993) 19 Cal.App.4th 761, 774.) For allowable costs, Code of Civil
Procedure section 1033.5, subd. (c) provides:
(2)
Allowable costs shall be reasonably necessary to the conduct of the litigation
rather than merely convenient or beneficial to its preparation.
(3)
Allowable costs shall be reasonable in amount.
(Code Civ. Proc., §1033.5, subd. (c)(2)-(3).)
To the extent Defendant challenges costs, they must be
challenged as costs that were not, “reasonably necessary to the conduct of the
litigation rather than merely convenient or beneficial to its preparation” or
not “reasonable in amount.” (Code Civ. Proc., §1033.5, subd. (c)(2)-(3).)
As discussed above, Plaintiff is the prevailing party in this action, and as
such, is entitled to costs pursuant to section 1032, subdivision (b).
Discussion
Plaintiff seek a total of $50,845.12
in costs. Defendant contests various portions of the memorandum of costs, asserting
that costs should be taxed in the amount of $36,197.69. The Court shall address
each contested item in turn.
Recovery of costs under Civil Code § 1794(d) is treated more
broadly than under Code of Civil Procedure § 1033.5, which refers to “costs and
expenses.” (Jensen v. BMW of North
America, LLC (1995) 35 Cal. App. 4th 112, 138; see also Warren, supra,
30 Cal.App.5th at p. 42.)
Costs
Item 1: Filing and Motions Fees
First, Defendant argues that item 1
should be taxed in the amount of $429.25 because Plaintiff improperly seeks to
recover costs incurred for the courtesy copies delivered to the Court. (Motion re: Tax Costs at pg. 4.) However, courier fees are recoverable when
they are reasonably necessary to the conduct of the litigation. (Doe v. Los Angeles County Dept. of
Children & Family Services (2019) 37 Cal.App.5th 675, 696.)
As Plaintiff represents, these costs
were incurred for the delivery of copies of Plaintiff’s motions in limine,
trial documents and ex parte applications to continue trial. (Opposition re:
Tax Costs at pg. 4; MOU, Attachment 1(G).) Therefore, these costs are recoverable
because they were necessary to the litigation.
Item 4: Deposition Costs
Second, Defendant seeks to tax
Plaintiff’s deposition costs (item 4) in the amount of $1,983.78 because 6 out
of the 7 dealership witness depositions were not used at trial. (Motion re: Tax Costs at pp. 4-5.)
As Plaintiff explains, these
depositions were taken because these dealerships were involved in the service
history of the subject vehicle. (Opposition re: Tax Costs at pp. 4-6;
Sannipoli Decl. ¶¶ 6-20, Exhs. B-I.) Because
Plaintiff’s claims included elements of the reasonableness of the repair
opportunities and the willfulness of Defendant’s failure to promptly repurchase
the subject vehicle, the attorney is entitled to “pursue all available legal
avenues and theories in pursuit of their clients’ objectives.” (Etcheson v. FCA US LLC (2018) 30
Cal.App.5th 831, 847.) Thus, even though
the deposition testimony of these witnesses were not used at trial, this is not
dispositive because they were still reasonably incurred in connection with the
prosecution of this action.
Accordingly, the Court declines to
tax Plaintiff’s deposition costs in the amount of $1,983.78.
Item
5: Service of Process
Third, Defendant seeks to tax
Plaintiff’s service of process costs (item 5) in the amount of $5,707.95. (Motion re: Tax Costs at pp. 5-6.)
Defendant reasons that these costs
were not reasonably incurred because the witnesses were each subpoenaed several
times and only one was called to testify. (Ibid.)
The Court does not find this persuasive. In this case, trial was
continued multiple times requiring multiple trial subpoenas, and Plaintiff had
the right to call his witnesses. Thus, these costs were reasonably incurred.
Accordingly, the Court declines to
tax service of process costs in the amount of $5,707.95.
Item 12: Models, Enlargements, and
Photocopies of Exhibits
Fourth, Defendant argues that the
parties agreed to split the costs of the copies of the trial exhibits, relying
on a handwritten note that states “[Defendant] agreed to split costs.” (Motion
re: Tax Costs at pg. 6; MOU, Sannipoli Decl. at pg. 428.) However, this note does
not show an explicit waiver to recover the entirety of this cost.
Accordingly, the Court declines to
tax this category in half.
Item
16: Other
Lastly, Defendant seeks to strike
most of the claimed costs under item 16 in their entirety.
Defendant argues that Plaintiff’s
Expert Witness Fees of $15,311.82 should be stricken because they are not
allowed under Code of Civil Procedure 1033.5 without a 998 offer. (Motion re: Tax Costs at pp. 7-8.) But under Civil Code section 1794, expert
witness fees costs are recoverable. (See
Jensen, supra, 35 Cal. App. 4th at p. 138 [“legislative history indicates the Legislature exercised its
power to permit the recovery of expert witness fees by prevailing buyers under
the Act”].)
Next, Defendant argues that the
hours expended by Plaintiff’s expert for traveling to and conducting the
vehicle inspection were unreasonable but fails to provide a comparison of the
hours expended by its expert. (Motion
re: Tax Costs at pp. 8-9.) Thus, there
is no basis to suggest that these claimed hours were excessive. Furthermore, Plaintiff clarifies that his
expert traveled to North Hollywood, not Ontario, at the time of the inspection,
which is more than sixty miles from the expert’s residence. (Opposition re: Tax Costs at pg. 7; Sannipoli
Decl. ¶ 23, Exh. J.)
Defendant also argues that the various
travel expenses for attending in-person hearings and trial amounting to
$8,036.77 should be stricken. (Motion
re: Tax Cost at pp. 9-10.) The Court
rejects this argument because Defendant fails to show that travel expenses are
not recoverable under Civil Code 1794(d).
Defendant further argues that the
miscellaneous litigation expenses (Court Call/Court Connect, court reporter
transcript, skip trace invoices), amounting to $3,159.20, should be stricken. The Court disagrees with this argument because
these costs incurred in attending hearings, and consequently, they were reasonable
incurred to prosecute this action. Also,
trial transcripts are be recoverable under this situation. (See Warren,
supra, 30 Cal.App.5th at 42.) Moreover,
expenses associated with locating potential witnesses are such costs that would
be reasonably incurred in order to prosecute this action. (Civ. Code § 1794(d).)
Accordingly, the Court declines to
tax any costs under this category.
III.
Conclusion
The motion for attorneys’ fees and
costs is granted. The Court grants Plaintiff’s request for attorneys’ fees in the total amount of $412,943.50.
The motion to strike Plaintiff’s memorandum of costs,
or to tax costs is denied. Costs are awarded to Plaintiff in the amount of $50,845.12.