Judge: Colin Leis, Case: 19STCV12433, Date: 2023-01-30 Tentative Ruling

Case Number: 19STCV12433    Hearing Date: January 30, 2023    Dept: 74

Superior Court of California

County of Los Angeles – CENTRAL District

Department 74

MOVING PARTIES:             Defendants Mercedes-Benz USA, LLC and Keyes European, LLC

RESPONDING PARTIES:     Plaintiffs Bryan Albright and Tracy Germain

Defendants Mercedes-Benz USA, LLC’s and Keyes European, LLC’s Motions to Tax or Strike Costs Re: Memoranda of Costs Filed by Wirtz Law, APC and Norman Taylor & Associates

The court considered the moving papers, opposition, and reply papers filed in connection with this motion.

BACKGROUND

On April 9, 2019, Plaintiffs Bryan Albright (“Albright”) and Tracy Germain (“Germain”) (collectively, “Plaintiffs”) filed a complaint against Defendants Mercedes-Benz USA, LLC (“Mercedes”) and Keyes European, LLC (“Keyes”) (collectively, “Defendants”) alleging breach of express and implied warranty obligations under the Song-Beverly Consumer Warranty Act.

On September 20, 2021, Plaintiffs filed a Notice of Settlement of Entire Case.  

On June 3, 2022, Plaintiffs filed a motion for attorneys’ fees, costs, and expenses which included a request for costs based on two memoranda of costs attached as exhibits to the declarations filed in support of the motion.  (6/30/22 Taylor Decl., ¶ 5, Exh. 2 [Costs Memo for Norman Taylor & Associates]; 6/30/22 Wirtz Decl. ¶ 2, Exh. B [Costs Memo for Wirtz Law].) 

On June 21, 2022, Defendants filed two motions to tax costs as to the Memoranda of Costs filed by each of Plaintiffs’ counsel, Norman Taylor & Associates and Wirtz Law.  In light of Defendants’ motions to tax costs, the court denied without prejudice Plaintiffs’ request for costs and expenses in their motion for attorneys’ fees until Defendants’ motions could be heard.  Plaintiffs’ counsel filed oppositions to the instant motions on January 17, 2023, and Defendants filed replies on January 23, 2023.

LEGAL STANDARD

The memorandum of costs is a verified statement by the party, attorney, or agent that the costs are correct and were necessarily incurred in the case.  (Cal. Rules of Court, Rule 3.1700, subd. (a)(1).)  “A verified memorandum of costs is prima facie evidence of the propriety of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.  (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989.)  “[I]f the correctness of the memorandum is challenged either in whole or in part by the affidavit or other evidence of the contesting party, the burden is then on the party claiming the costs and disbursements to show that the items charged were for matters necessarily relevant and material to the issues involved in the action.”  (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698, 699.)  However, “[a] party’s mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of counsel are insufficient to rebut the prima facie showing that the costs were necessarily incurred.”  (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 (Dumrichob).)

A buyer prevailing in a Song-Beverly action, “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, … 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).)  “Expense includes items beyond the “costs” set forth in Code of Civil Procedure section 1033.5.  (Jensen v. BMW of North America (1995) 35 Cal.App.4th 112, 137-38.)  “[I]t is clear that the Legislature intended the word ‘expenses’ to cover items not included in the detailed statutory definition of ‘costs’.”  (Id.)  Case law indicates that the statute is similar to Code of Civil Procedure section 1033.5, subdivision (c) which requires that allowable costs be reasonably necessary to the conduct of the litigation.  (Levy v. Toyota Motor Sales, USA, Inc. (1992) 4 Cal.App.4th 807, 813, n. 2.)  Thus, while Civil Code section 1794 allows for recovery of items beyond the costs set forth in Code of Civil Procedure section 1033.5, the costs and expenses must still be reasonably necessary to the conduct of the litigation and reasonable in amount.  (Id. at 816.)

DISCUSSION

            Defendants challenge as not reasonable and necessarily incurred in the prosecution of the action Wirtz Law’s requested recovery of $12,739.88 for costs incurred for depositions, service of process, court reporter fees, legal research, travel, copying/printing, postage, and courtesy copies. 

            Defendants also challenge as not reasonable and necessarily incurred in the prosecution of the action Norman Taylor & Associates’ requested recovery of $597.93 for costs incurred for copying/printing, travel, postage, and mediation.

The court considers the Defendants’ motions to tax costs together.

A.    Deposition Costs Filed by Wirtz Law

Defendants seek to strike or tax $968.83 in costs for traveling to depositions and $5,653.45 in taking depositions of Mercedes dealership personnel and technician and service advisors for a total of $6,622.28.  In opposition, Plaintiffs contend the deposition costs were necessarily incurred “to obtain information regarding repairs to the vehicle, authenticate and interpret the repair orders, and rebut [Mercedes’] anticipated argument that the problems with Plaintiffs’ vehicle were somehow caused by Plaintiffs’ neglect or abuse.”  (Rotman Decl., ¶ 3.)  In reply, Defendants contend that Plaintiffs fail to demonstrate that these depositions were reasonably necessary for the litigation because dealership personnel are almost never called at trial and the involvement of dealerships like Keyes are unnecessary in lemon law cases.

The court finds Defendants fail to meet their burden to demonstrate the costs were unnecessarily incurred.  Defendants simply offer the argument that taking depositions of personnel and technicians was unnecessary to the prosecution of the case.  “A party’s mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of counsel are insufficient to rebut the prima facie showing that the costs were necessarily incurred.”  (Dumrichob, supra, 63 Cal.App.4th at p.1266.) Here, Plaintiffs filed a verified memorandum of costs, which serves as prima facie evidence that the deposition costs were necessarily incurred.  Accordingly, the court denies the motion to tax deposition costs.

B.     Service of Process Costs Filed by Wirtz Law

Defendants challenge service of process costs of $265.00 based on the assertion that involvement of the non-party dealerships was unnecessary for this litigation.  In opposition, Plaintiffs submit the invoice for service of process of deposition subpoenas to the non-party dealership personnel.  (Rotman Decl., Ex. A.) Plaintiffs also submit evidence that the depositions of relevant dealership personnel were needed to obtain information to prosecute the action, and accordingly, service of process to conduct the depositions was likewise reasonably necessary. (Rotman Decl., ¶ 3.) Because the court rejects Defendants’ argument that the taking of depositions of dealership personnel was unnecessary, the motion to tax the service of process costs is denied.

C.    Court Reporter Fees Filed by Wirtz Law

Plaintiffs claim to have incurred costs of $3,698.45 in court reporter fees for three motions to quash subpoena, two motions to compel request for production, Mercedes’ ex parte to extend time, and Plaintiffs’ motion for attorney’s fees, costs, and expenses.  Defendants argue these costs were unnecessary because the court did not issue an order requiring these reports or hearings. Defendant’s argument does not persuade. Court reporters are useful to the prosecution of a case because the reporters create an official record of proceedings useful for litigating the case, including any trial and possible appeal. (Civ. Code § 1794, subd. (d).) Accordingly, the court finds these costs were reasonably incurred in connection with this action. 

D.    Other Costs Filed by Wirtz Law

Defendants’ motion is granted as to Plaintiffs’ costs incurred in travel ($166.36), copying/printing ($365.58), postage ($19.58), and courtesy copies ($377.50) in the amount of $929.02.  Costs incurred for travel, copying/printing, and postage are business overhead costs, and Plaintiffs’ counsel has not established they were reasonably incurred in connection with this action.  (Civ. Code § 1794, subd. (d).)  As to courtesy copies, Plaintiffs represent that courtesy copies were submitted for Plaintiffs’ Informal Discovery Conference Statement, Plaintiffs’ Opposition to MBUSA’s Ex Parte to Continue Response Deadline, and Plaintiffs’ Motion for Attorney’s Fees, Costs and Expenses.  However, Plaintiffs fail to establish that courtesy copies were required or helpful given the court’s efiling system.  

Defendants’ motion to tax costs incurred for legal research is denied.  Legal research into substantive issues is directly related to the prosecution of any case.  Therefore, the court finds costs incurred for conducting legal research were reasonably incurred in connection with this action. 

E.     Other Costs Filed by Norman Taylor & Associates

Defendants’ motion to tax costs incurred for copying/printing ($101.50), travel ($67.03), and postage ($16.90) is granted.  As stated above, these are business overhead costs and Plaintiffs’ counsel has not established they were reasonably incurred in connection with this action.  (Civ. Code § 1794, subd. (d).) 

Defendants’ motion to tax costs incurred for mediation is denied.  Because the court ordered  the parties to complete mediation in this case (see 8/7/19 Minute Order), the court finds these costs were reasonably incurred in connection with this action. 

CONCLUSION

Based on the foregoing, the court taxes: $929.02 from the Memorandum of Costs filed by Wirtz Law, APC and $185.43 from the Memorandum of Costs filed by Norman Taylor & Associates. The court awards Plaintiffs costs in the reduced total amount of $14,729.87.

Moving parties are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 30, 2023

_____________________________

Colin Leis

Judge of the Superior Court