Judge Christopher K. Lui, Case Number: 19STCV09423, Date: 2023-06-20 Tentative Ruling

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter. As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

Plaintiff alleges that Defendant has failed to repair the subject vehicle to conform to applicable warranties.

Following a jury trial, judgment was entered in favor of Plaintiff. Defendant seeks to tax Plaintiff’s memorandum of costs.

Defendant Kia America, Inc.’s motion to tax costs is DENIED as to Items Nos. 1, 4, 5, 12, 13 and GRANTED as to Item No. 8b in the amount of $2,899.71 and Item No. 16 in the reduced amount of $1,477.80.

Following a jury trial, judgment was entered in favor of Plaintiff. Defendant seeks to tax Plaintiff’s memorandum of costs as follows:

(a) Costs or any portion of claimed costs shall be as determined by the court in its discretion in a case other than a limited civil case in accordance with Section 1034 where the prevailing party recovers a judgment that could have been rendered in a limited civil case.

In determining whether the prevailing party recovered a judgment that could have been rendered in a court of lesser jurisdiction, the trial court does not add a potential award of statutory or contractual attorney's fees. ( Dorman v. DWLC Corp. (1995) 35 Cal. App. 4th 1808, 1815 [42 Cal. Rptr. 2d 459].)

However, Civil Code, § 1794 of the Song-Beverly Act controls as the more specific statute[1]. § 1794(d) mandates an award of reasonably incurred attorney’s fees, costs and expenses. (Civil Code, § 1794(d):

(d) If the buyer prevails in an action under this section, the buyer 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.[2]

Defendant argues that only $460.51 is permitted for filing the lawsuit, but $931.37 was for filing fifteen unnecessary motions. Defendant does not explain why each motion was unnecessary, nor why that would bar recovery of costs.

Defendant argues that there was no need for Plaintiff’s attorneys to take the depositions of service advisors and technicians because the service advisors and technicians keep a contemporaneous record of their work on the repair orders they prepare each time they work on a vehicle. Plaintiff's attorneys also know the service advisors and technicians work on hundreds of vehicles each year and cannot remember each one. There was no reason to incur the cost of serving deposition Subpoenas on and taking the depositions of the service advisors and technicians in this case.

(A) Taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed.

(B) Fees of a certified or registered interpreter for the deposition of a party or witness who does not proficiently speak or understand the English language.

Here, Plaintiff was entitled to take the deposition testimony of service advisors and technicians to lay the foundation for business records, as well as to provide any information their personal knowledge may have added. Defendant does not dispute that these depositions actually occurred. Plaintiff’s counsel’s pre-lawsuit knowledge of Lemon Law does not obviate the need for deposition testimony, as Plaintiff’s counsel does not have personal knowledge of the underlying facts.

The Court finds that the deposition costs were reasonably incurred and will be awarded to Plaintiff.

Defendant does not present any argument as to why $719.57 in service of process costs should not be awarded. To the extent Defendant relies upon its argument that such costs were incurred in connection with unnecessary depositions, this argument is not persuasive, as set forth above re: Item No. 4.

Defendant argues that expert testimony was not required in this Lemon Law case, and Plaintiff’s decision to retain an expert who resides in Sonoma does not justify his travel, hotel and meal costs.

Civ. Code, § 1794(d) permits the buyer to recover costs which the court determines to have been reasonably incurred:

Plaintiff does not explain why expert witness testimony was required in this action, which falls squarely within the reasoning of Oregel:

Isuzu also argues it was incumbent on Oregel to prove not only that the car leaked oil but also to show the cause of the leak, and that he failed to meet this burden because he produced no expert testimony proving the cause of the leak. However, the statute requires only that Oregel prove the car did not conform to the express warranty, and proof that there was a persistent leak that Ron Baker could not locate or repair suffices. We do not interpret the statute as depriving a consumer of a remedy if he cannot do what the manufacturer, with its presumably greater expertise, was incapable of doing, i.e. identify the source of the leak. We also reject Isuzu's claim that Oregel was obliged to introduce expert testimony to prove the nonconformity. 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. (Jorgensen v. Beach 'n' Bay Realty, Inc. (1981) 125 Cal. App. 3d 155, 163 [177 Cal. Rptr. 882] ["The correct rule on the necessity of expert testimony has been summarized by Bob Dylan: 'You don't need a weatherman to know which way the wind blows.' " (Fn. omitted.)].)

(Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal. App. 4th 1094, 1102 n.8.)

As such, the Court finds that the expert witness fees and associated travel costs were not reasonably incurred. However, Defendant only seeks to tax the expert’s travel-related costs in the amount of $2,899.71.

Defendant argues that these fees are excessive on their face, compared to the Los Angeles Superior Court fee schedule. Defendant also argues that transcripts of court proceedings which were not ordered by the Court are not allowable as costs. (Civ. Proc. Code, § 1033.5(b)(5).)

Plaintiff argues that Civil Code, § 1794(d) allows Plaintiff to recover a broader and more inclusive category of costs than those enumerated under § 1033.5. However, Jensen v. BMW North America, Inc. (1995) 35 Cal.App.4^th 112, cited by Plaintiff, interpreted that language in Civil Code, § 1794 “costs and expenses” to include expert witness fees, while Civ. Proc. Code, § 1033.5(a)(8) would only such costs if ordered by the court. While Civ. Proc. Code, § 1033.5(a)(11) only authorizes court reporter fees as established by statute, the Court finds that Civil Code, § 1794(d) would authorize recovery of such expenses if reasonably incurred.

In the Opposition, Plaintiff points out that the parties agreed to splitting the costs of the court reporting for the duration of trial. (Memorandum of Costs, Attachment 12c, Exh. G.) Defendant does not dispute that the court reporter actually charged $18,775.12 in fees, nor that Plaintiff actually paid such fees. The use of a court reporter was reasonable for purposes of preserving the record for appeal. Under Jensen’s interpretation of Civil Code, § 1794(d), these costs will be permitted.

Defendant argues that the documents attached to the Memorandum of Costs do not support the amount or need for an interpreter.

Plaintiff argues that he is a native Spanish speaker who requires Spanish language interpretation at both deposition and at trial, and there were not Superior Court interpreters available during trial. (Crandall Decl., ¶ 6.) Moreover, Attachment 13c, Exh. H to the Memorandum of Costs is evidence of the costs.

The Court finds Plaintiff’s argument and evidence to be persuasive and the costs will be permitted.

Defendant argues that “other” costs such as postage, photocopies, travel, parking and meals are not recoverable per Civ. Proc. § 1033.5(b)(3). However, § 1033.5(b)(3) provides that postage, telephone and photocopying charges may be allowable “when expressly authorized by law.” § 1033.5(b) does not prohibit recovery of travel, parking and meal costs. The Court will permit recovery of these costs, except for travel and meal costs. Travel costs in the form of mileage is akin to overhead, the choice to take an Uber incurs even greater travel costs than driving, and a person must each lunch regardless of where they are. In this regard, the total travel/mileage and meal costs being disallowed totals $1,477.80 (Memorandum of Costs, Attachment 16a.)

As such, the motion to tax Item No. 16 is GRANTED in the reduced amount of $1,477.80.

[1]

Under well-established principles of statutory interpretation, the more specific provision . . . takes precedence over the more general one . . .. (Citations omitted.) To the extent a specific statute is inconsistent with a general statute potentially covering the same subject matter, the specific statute must be read as an exception to the more general statute. (Citations omitted.)

(Salazar v. Eastin (1995) 9 Cal.4th 836, 857.)

[2]