Judge Christopher K. Lui, Case Number: 21STCV18506, Date: 2025-03-13 Tentative Ruling

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

The parties settled the case. Defendant moves to tax Plaintiff’s memorandum of costs.

Defendant Kia America, Inc. (formerly known as Kia Motors America, Inc.)’s motion to tax Plaintiff’s Memorandum of Costs is DENIED as to Item 1, Item 4, Item 5, Item 8a , Item 8b, Item 11, Item 12 and GRANTED IN PART as to Item 13 in the amount of $153.62.

Plaintiff’s request for attorney’s fees incurred in opposing this motion in the amount of $3,000 is GRANTED.

The parties settled the case. Defendant moves to tax Plaintiff’s memorandum of costs as follows:

Defendant moves to tax $523.85 in filing and Motion fees on the grounds that only the $435.00 to file the lawsuit and $61.65 to fille a fee motion were reasonably incurred in the lawsuit, and the remaining $523.85 was incurred for unnecessary filing and motion fees.

[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 omitted.) 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 omitted.)

The court's first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. (Citation omitted.) If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. (Citation omitted.)

(Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131 [bold emphasis and underlining added].)

A prevailing party is entitled to recover filing and motion fees. (Civ. Proc. Code, §§ 1032(b), 1033.5(a)(1).) Because the filing and motion fees listed in the Memorandum of Costs Worksheet are proper on their face, it is Defendant’s burden to show why they were unnecessary or unreasonable.

Moreover, even costs incurred in connection with unsuccessful portions of a case are recoverable:

The successful plaintiff is entitled to recover the whole of his or her costs, despite a limited victory. The defendant is not entitled to an offset, even though the defendant prevailed to some (lesser) extent. (E.g., Western Concrete Structures Co. v. James I. Barnes Constr. Co., supra, 206 Cal. App. 2d 1, 11; Hyatt v. Sierra Boat Co. (1978) 79 Cal. App. 3d 325, 346-350 [145 Cal. Rptr. 47] [no reduction in costs despite reduction in damages for comparative negligence].) Thus, we reluctantly conclude that because Michell obtained a net recovery, she is entitled to recover her costs as a matter of [*1201] right, even though some or all of the costs may pertain to causes of action upon which she did not prevail.

We leave it to the Legislature to set limits on allowable costs, perhaps imposing a requirement that the costs be related to the theories or causes of action upon which the party prevailed. We reiterate our concern that under the existing statute a prevailing plaintiff may be unjustly rewarded for joining patently unmeritorious--and expensive to prove--claims with a single meritorious claim.

Although we conclude that the trial court had no discretion to deny Michell her costs outright, we note that the trial court may disallow particular items which it determines are unnecessary or unreasonable. (§ 1032, subd. (c).) We remand for further proceedings on those questions.

The order taxing costs is reversed, and the matter is remanded for further proceedings consistent with this opinion. Costs on appeal are awarded to appellants.

Defendant has not met its burden of showing that the filing and motions fees were unnecessary or unreasonable. The motion to tax is DENIED as to Item 1.

Defendant argues that virtually all these costs were incurred between August 30, 2022, when KA offered to settle for $40,000.00, and September 17, 2024, when Plaintiff agreed to settle for $50,000.00. However, Defendant’s argument fails because Plaintiff recovered $10,000 more in settlement funds in that two year period. For the first time in the Reply Defendant compares Plaintiff’s eventual recovery to the offer it made in February 2020. This argument will not be considered because there is no reason why it was not made in the moving papers.

Defendant moves to tax $8,685.10 in deposition costs on the grounds that there is no reason to take the depositions of service advisors and technicians because the service records are sufficient. Defendant argues that only Plaintiff’s deposition and Kia’s PMQ deposition were necessary.

A prevailing party is entitled to recover deposition costs. (Civ. Proc. Code, § 1033.5(a)(3).) Plaintiff argues that the depositions of service advisors and technicians of people who actually worked on Plaintiff’s vehicle were necessary to prepare for trial to prevent surprise if Defendant calls these witnesses to rebut Plaintiff’s evidence or challenge their authenticity.

The Court finds that deposition of these witnesses was necessary to authenticate service records and to explain their contents. Defendant has not met its burden of demonstrating that these costs were unnecessary or unreasonable. The motion to tax is DENIED as to Item 4.

Defendant moves to tax $1,238.90 in service of process costs. Defendant argues that the only service of process fees reasonable incurred was $30 for serving the summons and complaint on Defendant.

A prevailing party is entitled to recover services of process costs. (Civ. Proc. Code, § 1033.5(a)(4).)

Because the subpoena services costs listed in the Memorandum of Costs Worksheet are proper on their face, it is Defendant’s burden to show why they were unnecessary or unreasonable. Defendant has not done so.

Defendant moves to tax $70.00 for ordinary witness fees, arguing that it was unreasonably and unnecessarily incurred.

A prevailing part is entitled to recover ordinary witness fees pursuant to Gov. Code, § 68093. (Civ. Proc. Code, § 1033.5(a)(7).)

Except as otherwise provided by law, witness’ fees for each day’s actual attendance, when legally required to attend a civil action or proceeding in the superior courts, are thirty–five dollars ($35) a day and mileage actually traveled, both ways, twenty cents ($0.20) a mile.

The ordinary witness fees listed on the Memorandum of Costs Worksheet are consistent with Gov. Code, § 68093. These fees are proper.

Defendant moves to tax $6,870.15 in expert witness fees on the ground that the time and hourly rates charged by the expert were unreasonable and not supported by documentation.

Costs and expenses recoverable by a prevailing buyer includes items not included in the statutory definition of costs set forth in CCP § 1033.5, but includes those reasonably incurred in connection with the commencement and prosecution of the action. (Civ. Code, § 1794(d); Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137-38; overruled in part on other grounds in Rodriguez v. FCA US LLC (2024) 17 Cal. 5th 189, 205.)

Plaintiff argues that the expert, Morales, rendered assistance regarding 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), which is relevant to civil penalties.

Plaintiff seeks to recover a total of $6,870.15 for 24.4 total hours, at an average hourly rate ranging from $260 - $300. The Court finds that this time and hourly rate are reasonable, and were reasonably and necessarily incurred by Plaintiff in this case. The expert fees will be permitted.

Defendant moves to tax $739.67 for models, blowups and photocopies on the ground that there is no documentation to substantiate these costs, and there was no trial.

Here, Plaintiff was forced to prepare for trial. The B&W Printing, Binders, Tabs, Flash Drives totaling $739.67 will be approved a reasonable and necessary to the conduct of litigation, as they would have been reasonably helpful to aid the trier of fact if trial had in fact occurred.

Defendant moves to tax $4,695.00 for court reporter fees on the ground that these are excessive on their face because 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. Defendant also argues that no court transcripts were ordered by the court.

The prevailing party is entitled to recover “[c]ourt reporter fees as established by statute. (Civ. Proc. Code, § 1033.5(a)(11).) The fees of a court reporter for hearings lasting more than one hour are the actual costs chargeable pro rata to the parties, as set forth by the Government Code, and are costs recoverable by the prevailing party:

In any case where a verbatim record is not made at public expense pursuant to Section 69952 or other provisions of law, the cost of making any verbatim record shall be paid by the parties in equal proportion; and either party at his option may pay the whole. In either case, all amounts so paid by the party to whom costs are awarded shall be taxed as costs in the case. . . .

Gov. Code § 68086 provides:

(a) The following provisions apply in superior court:

(1) In addition to any other fee required in civil actions or cases:

(A) For each proceeding lasting less than one hour, a fee of thirty dollars ($30) shall be charged for the reasonable cost of the services of an official court reporter pursuant to Section 269[1] of the Code of Civil Procedure. The proceeds of the fee shall be distributed to the court in which the fee was collected.

(B) For each proceeding lasting more than one hour, a fee equal to the actual cost of providing that service shall be charged per one-half day of services to the parties, on a pro rata basis, for the services of an official court reporter on the first and each succeeding judicial day those services are provided pursuant to Section 269 of the Code of Civil Procedure.

. . .

(4) The costs for the services of the official court reporter shall be recoverable as taxable costs by the prevailing party as otherwise provided by law.
. . .

Plaintiff has submitted invoices showing $4,095 billed in reporter’s fees, with $600 in anticipated fees for the attorney’s fees and costs hearing. (Devabose Decl., Exh. C; Memorandum of Costs Worksheet.) These fees will be permitted.

Defendant moves to tax $1,235.14 in "other" costs for attorney services, messengers, "court appearance professionals" and travel. Defendant concedes the $200 paid to a mediator is recoverable.

The Court will permit all costs listed in the Memorandum of Costs Worksheet as to Item 13, except for “Travel” in the amount of $153.62. This is more in the nature of overhead, especially when Plaintiff’s counsel is traveling from the Century City area.

Plaintiff’s request for attorney’s fees incurred in opposing this motion in the amount of $3,000 is GRANTED as recoverable pursuant to Civil Code, § 1794(d);

[1] CCP § 269 provides:

(a) An official reporter or official reporter pro tempore of the superior court shall take down in shorthand all testimony, objections made, rulings of the court, exceptions taken, arraignments, pleas, sentences, arguments of the attorneys to the jury, and statements and remarks made and oral instructions given by the judge or other judicial officer, in the following cases:

(1) In a civil case, on the order of the court or at the request of a party.

(2) In a felony case, on the order of the court or at the request of the prosecution, the defendant, or the attorney for the defendant.

(3) In a misdemeanor or infraction case, on the order of the court.

(b) If a transcript is ordered by the court or requested by a party, or if a nonparty requests a transcript that the nonparty is entitled to receive, regardless of whether the nonparty was permitted to attend the proceeding to be transcribed, the official reporter or official reporter pro tempore shall, within a reasonable time after the trial of the case that the court designates, write the transcripts out, or the specific portions thereof as may be requested, in plain and legible longhand, or by typewriter, or other printing machine, and certify that the transcripts were correctly reported and transcribed, and when directed by the court, file the transcripts with the clerk of the court.

(c) If a defendant is convicted of a felony, after a trial on the merits, the record on appeal shall be prepared immediately after the verdict or finding of guilt is announced unless the court determines that it is likely that no appeal from the decision will be made. The court's determination of a likelihood of appeal shall be based upon standards and rules adopted by the Judicial Council.