Judge Daniel M. Crowley, Case Number: 21STCV38785, Date: 2023-10-10 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff via the Department's email: SMCdept71@lacourt.org before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by LACourtConnect for all matters.

Defendants Toyota Motor Sales, U.S.A., Inc.’s and John Elway’s Crown Toyota’s motion to tax Plaintiff Rhonda Savage’s costs is granted in the reduced total of $2,440.58. Therefore, Plaintiff is entitled to total costs in the reduced amount of $919.35.

Defendants Toyota Motor Sales, U.S.A., Inc. (“TMS”) and John Elway’s Crown Toyota (“Crown Toyota”) (collectively, “Defendants”) move to tax costs requested by Plaintiff Rhonda Savage (“Savage”) (“Plaintiff”) in their entirety. (Notice Motion, pg. 1; CRC, Rule 3.1700(b)(1).) Defendants move in the alternative to tax costs for Item 1 (filing and motion fees), Item 2 (jury fees), Item 4 (deposition costs), Item 5 (service of process), Item 11 (court reporter fees), Item 14 (feed for electronic filing or service), and Item 16 (other). (Notice Motion, pg. 2.)

This is a lemon law case arising from Plaintiff’s purchase of a 2019 Toyota Camry (“Subject Vehicle”). On October 21, 2021, Plaintiff filed her Complaint against Defendants and alleged the following causes of action: (1) Breach of Express Warranty; (2) Breach of Implied Warranty; (3) Violation of Civil Code §1793.2; and (4) Negligent Repair. The first three causes of action arise under the Song-Beverly Consumer Warranty Act (“Song-Beverly”).

On October 5, 2022, Plaintiff signed a Settlement Agreement which provided Plaintiff with restitution in the amount of $46,479.96 plus $375 for Plaintiff’s DMV registration and reimbursement of any loan payments made by Plaintiff after June 1, 2022, with attorney’s fees and costs to be determined by negotiations or a noticed motion. On April 21, 2023, this Court granted Plaintiff’s motion for attorneys’ fees in the reduced amount of $52,609.50. (4/21/23 Minute Order.)

On March 29, 2023, Plaintiff filed her two memorandums of costs. On April 11, 2023, Defendants filed the instant motion. On September 26, 2023, Plaintiff filed her opposition. On October 3, 2023, Defendants filed their reply.

Civil Code §1794(d) provides, as follows: “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 . . . incurred by the buyer in connection with the commencement and prosecution of such action.”

“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).)

Here, Plaintiff is the prevailing party in the instant action by virtue of achieving her litigation goals and further evidenced by this Court’s grant of her earlier attorneys’ fees motion and is therefore entitled to recover her costs and expenses. (Jensen v. BMW (1995) 35 Cal.App.4th 112, 137.)

Defendants move to tax $120.00 of Plaintiff’s combined filing and motion fees in the total of $555.00. Defendants argue Plaintiffs seek to recover $60.00 for filing a motion to compel that Plaintiff later withdrew, and $60.00 for filing her motion for attorneys’ fees and costs, which was filed after Defendants’ June 8, 2022, §998 offer. (Motion, pgs. 5-6.)

Plaintiffs sufficiently met their burden to demonstrate the costs at issue are recoverable. Plaintiff submitted evidence she paid the $60.00 fee and filed her Motion to Compel Compliance with a subpoena on July 12, 2022. (Decl. of Rotman, Exh. A.) Plaintiff withdrew the Motion to Compel on July 18, 2022. Defendants’ counsel did not sign the Settlement Agreement until October 24, 2022, after Plaintiff’s counsel signed on October 5, 2022. (Decl. of Rotman, Exh. B.) The fee for Plaintiff’s Motion to Compel was paid months before the case settled, and Plaintiff is therefore allowed to recover it as a cost.

As for the $60.00 fee to file the Motion for Attorney’s Fees, Defendants argue that amount is unrecoverable because it was incurred after service of a C.C.P. §998 offer. Here, as in Madrigal v. Hyundai Motor America, the terms of the stipulated settlement under section 664.6 constituted a “judgment” within the meaning of §998(c). (Madrigal v. Hyundai Motor America (2023) 90 Cal.App.5th 385, as modified on denial of reh’g (May 9, 2023).) Therefore, Plaintiff is not entitled to costs incurred after the C.C.P. §998 offer.

Here, Plaintiff paid the $60.00 fee for the motion for attorneys’ fees after the case settled.

Defendants move to tax $150.00 of Plaintiff’s jury fees. Defendants fail to meet their burden to challenge Plaintiff’s costs, as they challenge the cost in a conclusory fashion.

Defendants move to tax all $473.90 in deposition costs that Plaintiff requests. Defendants argue the cost was not reasonable and necessary because the cost was incurred after Defendants’ June 8, 2022, §998 Offer. (Motion, pg. 6.) Plaintiffs’ affidavit of non-appearance for TMS’ Person Most Qualified took place on June 27, 2022, and is therefore not recoverable. (Decl. of Rotman, Exh. D.).

Defendants move to tax $608.68 in service of process fees from the total of $758.68 on the basis costs for service of process on Lithia TR Inc. ($52.50); Timothy Tamisin ($110.00); Valley Hi Tech No. 40197 ($110.00); Valley Hi Toyota’s PMQ ($72.12); Lithia Toyota Tech No. 6646 ($150.00); Lithia Toyota Service Advisor ($75.00); and Lithia Toyota’s PMQ ($37.06) were not reasonable or necessary because they were incurred after Defendants’ June 8, 2022, §998 Offer. (Decl. of Rotman, Exhs. B, E.)

Accordingly, Defendants’ request to tax costs for service of process is granted in the reduced amount of $606.68.

Defendants move to tax all $1,150.00 in fees for court reporters during the Post-Mediation Status Conference ($625.00) and Motion for Attorney’s Fees ($525.00). Defendants argue these costs were incurred after the June 8, 2022, §998 Offer. (Decl. of Rotman, Exh. F.)

Accordingly, Defendants’ request to tax costs for court reporter fees is granted in the amount of $1,150.00.

Defendants move to tax all $502.97 in fees for electronic filing or service on the basis Plaintiffs did not attach invoices or documentation establishing such costs. Defendants do not provide a legal standard to support this challenge to Plaintiff’s costs.

Assuming, arguendo, Defendants met their burden, Plaintiff sufficiently demonstrated their costs for electronic filing and service were reasonable in amount and supported by documentation. (Decl. of Rotman, Exh. G.)

Accordingly, Defendants’ request to tax costs for electronic filing or service is denied.

Defendants move to tax $189.38 in other fees. Defendants move to tax (i) mileage ($186.38), and (ii) copies ($5.00). (Motion, pg. 7.)

Here, travel expenses incurred for a vehicle inspection was reasonably necessary in the “prosecution of such action.” (Civ. Code §1794(d).) Plaintiff’s paralegal Andrea Lizarraga incurred travel costs on November 21, 2022, when she drove roundtrip from Wirtz Law’s office in San Diego to Valley Hi Toyota to attend the vehicle surrender. (Decl. Lizarraga ¶3.) Plaintiff’s paralegal declares the total mileage was 295 miles, which was billed at the 2022 rate of 63 cents/mile. (Decl. Lizarraga ¶3.) Plaintiff’s paralegal declares that at the vehicle surrender, she worked with Plaintiff and Sedgwick transfer agent Frank Kejmar to fill out the required forms and complete the surrender correctly. (Decl. Lizarraga ¶3.) As such, these costs were reasonably incurred.

Defendants’ motion to tax costs is granted in the reduced total amount of $2,440.58.

Hon. Daniel M. Crowley

Judge of the Superior Court