Judge Daniel M. Crowley, Case Number: 19STCV46353, Date: 2023-09-19 Tentative Ruling

All parties are urged to meet and confer with all parties
concerning this tentative ruling to see if they can reach an agreed-upon
resolution of their matter.  If you are able to reach an
agreement, please notify the courtroom staff in advance of the hearing if
you wish to submit on the tentative ruling rather than argue the motion by
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the moving party fails to appear and/or submit to the Court’s tentative ruling,
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            Note
that once the Court has issued a tentative, the Court has the inherent
authority not to allow the withdrawal of a motion and to adopt the tentative
ruling as the order of the court.

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Plaintiffs Xavier Richie’s and Karime Aguilar Richie aka Karime Aguilar’s motion to tax Defendant Kia Motors America, Inc.’s costs is granted in the reduced total of $14,874.80.

Defendant’s motion to tax Plaintiffs’ costs is granted in the reduced total of $30,235.18.

Plaintiffs Xavier Richie (“Richie”) and Karime Aguilar Richie aka Karime Aguilar (“Aguilar”) (collectively, “Plaintiffs”) move to tax costs requested by Defendant Kia America, Inc. fka Kia Motors America, Inc. (“KA”) (“Defendant”) in the total amount of $25,433.72. (Notice Plaintiff Motion, pg. 1.)

Plaintiffs move in the alternative to tax Defendant’s costs as excessive, unreasonable and/or not recoverable under C.C.P. §1033.5. (Notice Motion, pg. 1.) Specifically, Plaintiffs seek to tax unrecoverable filing fees ($993.35), unrecoverable deposition charges ($10,228.95), unrecoverable witness fees ($3,052.50), and unrecoverable “other” charges ($9,529.65) in the total amount of $23,804.45. (Notice Plaintiff Motion, pg. 1.)

Defendant moves to strike costs requested by Plaintiffs, and in the alternative tax certain costs claimed by Plaintiffs on the grounds that many of the costs Plaintiffs claim are not recoverable or are otherwise unreasonable. (Notice Defendant Motion, pgs. 1-2; C.C.P. §§1032, 1033, 1033.5 et seq.)

This is a lemon law action brought under the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”). Defendant served Plaintiffs with a C.C.P. §998 Offer to Compromise (“998 Offer”) in this matter on March 20, 2023. (Decl. of Cutler ¶2, Exh. A.) On June 29, 2023, after jury trial, Judgment was entered in favor of Plaintiffs and against KMA in the amount of $2,287.25. (Decl. of Cutler ¶3.) On September 29, 2023, this Court declined to award Plaintiffs any attorneys’ fees on the basis they were not the prevailing party in this matter because they failed to reach their litigation objective. (9/29/23 Minute Order.)

On August 4, 2023, Plaintiffs filed their motion. Defendant filed its opposition to Plaintiff’s motion on November 2, 2023. Plaintiffs filed their reply on November 8, 2023. On November 16, 2023, this Court directed parties to submit supplemental briefs regarding post-§998 Offer costs. (See 11/16/23 Minute Order.) Plaintiffs filed their supplemental brief on November 17, 2023. Defendant filed its supplemental brief on November 22, 2023.

On August 4, 2023, Defendant filed their motion. On November 14, 2023, Plaintiffs filed an opposition to Defendant’s motion. Defendant filed its reply on November 20, 2023.

Civil Code §1794(d) provides that a buyer who prevails in an action under that section, “shall be allowed by the court to recover as a 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 the prosecution of such action.”

C.C.P. §998(c)(1) provides as follows: “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.” (C.C.P. §998(c)(1).) “In determining whether the plaintiff obtains a more favorable judgment, the court . . . shall exclude the post offer costs.” (C.C.P. §998(c)(2)(A).) “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff.” (C.C.P. §998(e).)

Here, Plaintiffs were offered $35,000 to settle this case in the March 20, 2023, §998 Offer, declined the offer, and eventually received only $2,287.25 at trial. This Court previously ruled that Plaintiffs are not the prevailing party in this action and are therefore not entitled to attorneys’ fees under Civil Code §1794.

“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. (C.C.P. §1032(b).) California law recognizes three types of litigation costs: allowable, not allowable, and discretionary. (C.C.P. §§1033.5(a), (b), (c)(4).) Items not specifically allowable as costs under C.C.P. §1033.5(a), and not specifically prohibited under §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, C.C.P. §1033.5(c) provides:

(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.

To the extent Defendants challenge 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.” (C.C.P. §§1033.5(c)(2)-(3).)

On November 16, 2023, the Court directed both parties to submit supplemental briefs regarding post-§998 costs on the basis that although the Court did not award attorneys’ fees to Plaintiffs under Civil Code §1794, they are still entitled to recover costs enumerated in C.C.P. §1033.5(a) so long as such costs are reasonably in amount and reasonably necessary to the conduct of litigation. (See Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137-138.) Defendant’s supplemental brief fails to provide the substantive figures the Court requested and stands on its original argument that the Court should deny in Plaintiffs’ motion in whole.

Plaintiffs move to tax $993.35 in filing and motion fees of the $1,287.62 requested in Defendant’s memorandum of costs. (See Defendant’s Memorandum of Costs, Attach. 1g at pgs. 4-5 of 6.) Plaintiffs argue Defendant is not entitled to recover costs Defendant improperly seeks filing fees for items incurred before the service of its March 20, 2023, §998 Offer because Defendant is not the prevailing party for any costs that occurred prior to the date the offer was served.

Plaintiffs met their burden to challenge these costs because Defendant is only entitled to recover filing fees after Plaintiffs failed to accept Defendant’s §998 Offer, and therefore the filing fees requested prior to March 20, 2023, are not recoverable by Defendant. (Jensen, 35 Cal.App.4th at pgs. 137-138; Defendant’s Memorandum of Costs, Attach. 1g at pgs. 1, 4-5 of 6.)

Plaintiffs move to tax all $10,228.95 in deposition costs that Defendant requests. Plaintiffs argue every deposition Defendant seeks costs for was incurred before the §998 Offer and Defendant also seeks costs for unreasonable or unnecessary deposition charges such as notices of non-appearance. (Motion, pg. 8.)

Accordingly, Plaintiffs’ request to tax costs for deposition costs is granted in the amount of $10,228.95.

Plaintiffs met their burden to challenge these costs because Defendant is only entitled to recover filing fees after Plaintiffs failed to accept Defendant’s §998 Offer, and therefore the witness fees requested prior to March 20, 2023, are not recoverable by Defendant. (Jensen, 35 Cal.App.4th at pgs. 137-138; Defendant’s Memorandum of Costs, Attach. 8b(5) at pg. 3, 5 of 6.)

Accordingly, Plaintiffs’ request to tax costs for witness fees is granted in the amount of $3,052.50.

Accordingly, Plaintiffs’ request to tax costs for hotel and travel expenses is denied.

Accordingly, Plaintiffs’ request to tax costs for mediation fees is granted in the amount of $600.00.

Plaintiffs’ motion to tax costs is granted in the reduced total of $14,874.80.

On July 21, 2023, Plaintiffs served their memorandum of costs seeking $55,926.67. Defendants seek to tax all costs in Plaintiff’s memorandum of costs.

Defendant moves to tax $489.10 of the total $924.10 in filing and motion fees of Plaintiffs’ memorandum of costs. Defendant concedes the cost of the filing and motion fees for the complaint at a cost of $435.00. Defendant disputes Plaintiffs’ filing fee of $360 for six “Ex Parte” applications since they do not specify which ex parte applications they are seeking costs for. Defendant also points out that Plaintiffs seek $61.65 for a motion to compel but do not specify for which motion to compel they are seeking costs. Defendant also contends that Plaintiffs seeking $61.65 for “filing MAF (anticipated)”[1] should be taxed as a future cost since its uncertain whether payment will occur.

Defendant met its burden to demonstrate three of the filing fees it contests were filed after the §998 Offer was rejected—the 5/10/23 ex parte, the 6/15/23 downloading of court documents, and the 8/31/23 filing fees for a motion for attorneys’ fees. (Decl. of Devabose, Exh. A at pg. 1.) However, the other filing costs Defendants challenge predated the rejection of the §998 Offer.

Accordingly, Defendant’s request to tax costs for filing and motion fees is granted in the amount of $127.45.

Defendant moves to tax $1,872.25 of the total $2,022.25 in jury fees Plaintiffs request. Defendant claims Plaintiffs have not offered any justification for the jury costs of $343.30 for 5/18/2023, $343.30 for 5/19/2023, $343.31 for 5/22/2023, $280.78 for 5/23/2023, $280.78 for 5/24/2023, and $280.78 for 5/25/2023 because the payments were incurred after the date the §998 Offer was rejected.

Defendant met its burden to demonstrate the abovementioned jury fees filed after the §998 Offer was rejected were unnecessary and not reasonably incurred.

Accordingly, Defendant’s request to tax costs for jury fees is granted in the amount of $1,872.25.

Defendant moves to tax all $11,289.60 for deposition costs that Plaintiffs request. Defendant asserts that the deposition costs for dealer staff, which include costs related to non-appearance affidavits for third party witnesses were unnecessary in this matter since Plaintiffs received all information needed through the deposition of Frank Gonzalez.

Defendant does not meet its burden to challenge Plaintiffs’ deposition costs. Defendant fails to support its argument that these deposition costs were not “reasonably necessary to the conduct of the litigation.” Moreover, Plaintiffs provide that these depositions were reasonable and necessary since Plaintiffs deposed the people who worked on the car and have transcripts of their own testimony to prepare for trial. Plaintiffs also sufficiently demonstrate their costs for the deposition fees occurred before the §998 Offer was rejected on March 20, 2023. (Decl. of Devabose ¶4, Exh. A.)

Defendant moves to tax $4,001.43 of the total $4,031.43 for service of process costs that Plaintiffs seek. Defendant concedes the $30.00 cost for service of the lawsuit on Defendant. Defendant questions the validity of the remaining costs since Plaintiffs does not provide any dates and receipts confirming when the subpoenas were served. Defendant asserts that nearly all the items for service of process to third party dealership staff are unnecessary to Plaintiffs’ litigation of the case. Defendant also points out that Plaintiffs does not provide any evidence of invoices reflecting whether any of these costs were incurred.

Defendant met its burden to demonstrate five of the service of process costs filed after the §998 Offer was rejected were unnecessary and not reasonably incurred—costs on 4/26/23, 5/1/23, 5/16/23, and two costs billed on 6/6/23. (Decl. of Devabose, Exh. A at pg. 4.)

Accordingly, Defendant’s request to tax costs for service of process is granted in the amount of $889.62.

Defendant moves to strike all $8,977.03 in expert fees or, alternatively, tax $6,477.03 in expert fees that Plaintiffs request. Defendant contends that Plaintiffs’ expert Barry Bookman was not ordered by the Court to testify, and his testimony did not assist the jury that Defendant failed to complete repairs to the subject vehicle in 30 days. However, C.C.P. §998(c)(1) allows the Court in its discretion to award expert witness fees if it so chooses.

Defendant met its burden to demonstrate $2,500.00 in expert fees were unreasonable because they pertain to testimony at trial that occurred after the §998 Offer was rejected. (Decl. of Devabose, Exh. A at pg. 4.)

Accordingly, Defendant’s request to tax costs for expert fees is granted in the amount of $2,500.00.

Defendant moves to strike all $1,964.78 for costs of exhibit binders. Defendant states that Plaintiffs’ claim occurred after the date of Defendant’s § 998 Offer. Defendant argues that Plaintiffs do not provide any proof that these costs were incurred towards the Exhibit Binders nor attached receipts or documents. Pursuant to C.C.P. §1033.5(a)(13), costs are allowed for “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits.” Plaintiffs’ costs for exhibits binders are allowable. However, the costs of the exhibit binders occurred after the §998 Offer was rejected. (Decl. of Devabose, Exh. A at pg. 4.)

Accordingly, Defendant’s request to tax costs for exhibit binders is granted in the amount of $1,964.78.

Defendant moves to strike all, or alternatively, tax $19,876.38 of the total $20,506.38 in court reporter fees Plaintiffs request. Defendant contends that the court reporter fees incurred on November 30, 2022, are unnecessary because the fees were acquired based on an ex parte for a motion to compel production of a competent person most knowledgeable by Defendant. Defendant asserts the ex parte was unnecessary since the Court’s minute order denied the application. Defendant requests the Court to strike $630.00 paid on that day and $19,190.88 costs were acquired after Defendant’s offer.

Court reporter fees are recoverable when authorized by statute. (C.C.P. §1033.5(a)(11).) When an official court reporter is not available, a party may arrange and pay for a certified shorthand reporter, and those fees are recoverable as taxable costs. (Gov. Code §68086(d)(2); CRC, Rule 2.956(c)(1).)

Defendant fails to provide supporting evidence that the Court did not find a court reporter to be necessary for the hearing on the ex parte motion. However, Defendant met its burden to challenge Plaintiffs’ costs for court reporter fees as unreasonable as they were incurred after the §998 Offer was rejected. Plaintiffs assert that Defendants stipulated to the use of the court reporters but offer no evidence of this stipulation. (See Decl. of Devabose ¶4, Exh. A.)

Accordingly, Defendant’s request to tax or strike costs court reporter fees is granted in the amount of $19,190.88.

Defendant moves to strike $5,525.62 of $6,211.07 other costs Plaintiffs request. Defendant asserts that Plaintiffs’ request for $1,640.42 for “Attorney Services and Messengers for Court Filings and Service” does not provide any information detailing the costs. Defendant also seeks to strike or tax $2,352.69 in costs for the trial transcript which occurred after the date of the offer. Defendant contends that the transcript was not court ordered and Plaintiffs did not provide any proof of this cost. Defendants point out that Plaintiffs’ claim of $1,267.51 for “travel” should be stricken in its entirety since Plaintiffs did not provide any information about the costs or whether the charges include meals. Defendant seeks to strike Plaintiffs’ claim of $195.00 for an appearance attorney since Plaintiffs did not describe when these fees were incurred and provide document. Lastly, Defendant seeks to strike Plaintiffs’ claim of $70.00 for “Other” because Plaintiffs did not provide any information on the costs.

Plaintiffs cites to authority that court messenger fees have been upheld by courts. The Court is inclined to allow the court messenger fees on this basis. In addition, Defendant fails to cite authority in favor of taxing costs for appearance attorneys.

It appears that Plaintiffs’ travel requests are for meals, parking, mileage, which occurred after the §998 Offer was rejected. (Decl. of Devabose, Exh. A at pgs. 7-9.) As such, Plaintiffs’ travel requests are not allowable. Plaintiffs concede that no trial transcript was ordered by the Court and thus, the costs for the trial transcript are not reasonable. Plaintiffs’ request for other costs appears to be for “PGI Invoice: Address Locate.” Plaintiffs fail to explain why these costs are reasonable or necessary for the litigation process. Thus, Defendant has met its burden to challenge these other costs.

Accordingly, Defendant’s request to strike the other costs is granted in the amount of $3,690.20.

Defendant’s motion to tax or strike costs is granted in the reduced total of $30,235.18.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court presumes, based on context, that “MAF” is an abbreviation for “motion for attorneys’ fees.”